Federal Supreme Court, 26.09.2025, 9F_19/2025
Facts
When acquiring a stake in a subsidiary, A.________ AG (the taxpayer) paid a higher price per share for the block held by its sole shareholder than for the blocks held by third parties. The Zurich tax authority classified the total price difference of CHF 1,530,000 as a constructive dividend (hidden profit distribution) and recorded a "negative reserve" of that amount in the tax balance sheet for the 2020/2021 period, thereby reducing the taxable equity.
The taxpayer's appeals to have this negative reserve cancelled were successively rejected by the cantonal authorities on the grounds that it lacked a legitimate interest, as its request would result in a higher tax assessment. The Federal Supreme Court confirmed this decision in a judgment dated July 3, 2025. The taxpayer then filed an application for revision of this judgment, producing new tax assessments for the 2023 period, which it claimed proved the existence of hidden reserves justifying the initial purchase price and, consequently, its interest in appealing.
Law
The Federal Supreme Court reiterates that the revision of one of its judgments is an extraordinary legal remedy. The application is based on Art. 123 para. 2 let. a of the Federal Supreme Court Act (FSCA). For a revision to be granted on this basis, five cumulative conditions must be met:
- The applicant invokes a fact or a piece of evidence.
- This fact or piece of evidence is relevant, meaning it is capable of changing the outcome of the case.
- It is a "pseudo-novum": the fact or piece of evidence already existed at the time the initial judgment was rendered. "True nova," which occurred after the judgment, are excluded.
- The fact or piece of evidence was discovered after the end of the initial proceedings.
- The applicant could not have invoked it in the previous proceedings despite having exercised the required diligence.
The Federal Supreme Court also reiterates the prohibition of "true nova" in ordinary appeal proceedings (Art. 99 para. 1 FSCA) and specifies that the more flexible previous practice of the former Federal Insurance Court is no longer applicable under the FSCA.
Application to the specific case
The Federal Supreme Court analyzes the application for revision in light of the conditions of Art. 123 para. 2 let. a FSCA. It considers the 2025 tax assessments for the 2023 period as a new piece of evidence, rather than a new fact.
The Court finds that this evidence does not meet the conditions for a revision. Firstly, it doubts its relevance, as a tax assessment for a subsequent fiscal period does not necessarily have a binding effect on a prior period.
Secondly, and decisively, the condition of procedural diligence is not met. The Court notes that the 2023 tax assessments are based on share valuations dating from 2020 and 2021. The taxpayer had these valuations at its disposal during the initial cantonal proceedings and should have produced them at that time. By failing to do so, it breached its duty of diligence. The revision procedure is not intended to correct a party's procedural omissions.
Since the conditions for revision are cumulative and at least one of them is missing, the application must be rejected.
Outcome
The Federal Supreme Court rejects the application for revision. The legal costs are charged to the applicant company.
Silex tax newsletter published in collaboration with Anna Vladau, Attorney at Law
