Federal Supreme Court, 19.01.2026, 9C_96/2024
Facts
A senior executive at a federal office was summarily dismissed for serious breaches of their duty of loyalty (falsified expense reports, incorrect time tracking, and conflicts of interest). Upon appeal, the Federal Administrative Court (FAC) ruled that the grounds for dismissal were objectively justified and sufficiently serious to warrant immediate termination. However, it found that the employer had acted too late after becoming aware of the facts, thereby forfeiting the right to dismiss with immediate effect. The dismissal was therefore classified as unjustified on these formal grounds.
The FAC awarded the employee compensation equivalent to eight months' gross salary (CHF 133,102.30) under Art. 34b para. 1 let. a of the Federal Personnel Act (FPA). In their 2017 tax return, the couple declared this amount as non-taxable income. The tax administration of the Canton of Bern reclassified it as taxable income. Subsequent appeals by the taxpayers were rejected by the cantonal authorities.
Law
Under the principle of comprehensive income taxation (Art. 16 DBIA), all income is in principle taxable.Art. 24 let. g DBIA provides an exception for sums paid as compensation for non-pecuniary damage ("Genugtuungssummen"). Under civil law (Art. 49 CO), compensation for non-pecuniary damage requires an exceptionally serious violation of personal rights; a minor violation is insufficient.
In its case law (BGE 148 II 551), the Federal Supreme Court established that compensation for wrongful termination (Art. 336a CO) is fully tax-exempt, as its primary purpose is to compensate for the non-pecuniary damage caused to the employee, even if it also has a punitive character. Compensation for unjustified summary dismissal (Art. 34b FPA, modeled onArt. 337c CO) pursues similar goals (reparation, sanction).
The tax classification of an indemnity is independent of its treatment under social security (OASI), where such payments are generally exempt from contributions.
Application to the specific case
The Federal Supreme Court must determine whether the indemnity received by the appellant, following an immediate dismissal deemed unjustified solely due to its late issuance, constitutes tax-exempt compensation for non-pecuniary damage.
The Federal Supreme Court makes a crucial distinction:
- An abusive dismissal (e.g., discriminatory) or an immediate dismissal without material just cause inherently causes serious harm to one's personality, justifying its classification as non-pecuniary damage.
- In the present case, the dismissal was objectively justified by the serious misconduct committed by the employee. The illegality lies only in the employer's delay in acting. The harm to the personality is therefore limited to the fact that the employee was kept in prolonged uncertainty.
The Federal Administrative Court had, in fact, itself described the harm to the personality as "minor." However, minor harm does not meet the conditions for compensation for non-pecuniary damage within the meaning ofArt. 49 CO.
The tax exemption under Art. 24 lit. g DBG, which must be interpreted restrictively, therefore does not apply. The indemnity paid was not primarily intended to compensate for moral suffering, but rather to sanction a procedural flaw on the part of the employer. Consequently, it cannot be classified as an exempt sum.
Outcome
The Federal Supreme Court dismisses the appeal. The indemnity of CHF 133,102.30 is confirmed as fully taxable income for federal, cantonal, and communal tax purposes.
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