01 January 2024

Stamp duty and reorganisation measures

  • Articles
  • Tax
  • Restructuring / Insolvency
  • Structuring / Relocation

In its ruling of September 7, 2023, the Federal Supreme Court decided that losses must be booked out in the balance sheet in order for restructuring contributions to be exempt from the issue tax up to the exemption amount of CHF 10 mio. The Federal Supreme Court thus supports the FTA's previous practice and contradicts the ruling by the Federal Administrative Court of November 29, 2021.

  • Thomas Linder

    Tax Partner

  • Mario D. Rada

    Tax Advisor

  • Christina Stocker

    Senior Tax Advisor

Background

The creation and increase of the nominal value of participation rights and the contributions by the direct shareholder to the company are in principle subject to issuance stamp duty in the amount of 1 per cent. However, restructuring contributions are exempt from the stamp duty insofar that the (one-time) reorganisation exemption limit of CHF 10 mio. can be claimed (art. 6 para. 1 lit. k Federal Law on Stamp Duties (Bundesgesetz über die Stempelabgaben, «StG»)).

The restructuring exemption limit can only be utilised if existing losses are eliminated (art. 6 para. 1 lit. k lemma 1 StG). In its ruling A-5073/2020 of November 29, 2021, the Federal Administrative Court ruled that it is not required to book out losses in the balance sheet in order to meet the requirement of loss elimination. Find more details on this in our article stamp duty and reorganisation measures of 1 January 2022. The FTA has filed an appeal in public law matters with the Federal Supreme Court in this regard.

New jurisprudence

In its ruling 9C_610/2022 of September 7, 2023, the Federal Supreme Court (partially) contradicted the previous Federal Administrative Court ruling: The reorganisation exemption limit of CHF 10 mio. is not applicable if the company in need of a restructuring simultaneously forms capital contribution reserves and thus only eliminates the losses from a business perspective.

Instead, the Federal Supreme Court requires existing losses to be booked out against the restructuring contributions made. In addition, this must take place at the time at which the restructuring measure is to be recognised. In this way, the Federal Supreme Court wants to give the responsible corporate bodies the choice of either saving issuance stamp duty or creating capital contribution reserves.

Implications in practice

The new (or rather old) practice on the restructuring exemption limit for the issuance stamp duty raises a few questions in practice.

In its ruling 9C_610/2022 of September 7, 2023, the Federal Supreme Court did not comment on the requirements for a waiver of the issuance stamp duty under art. 12 StG. The Federal Administrative Court, however, made a legally binding decision that no derecognition of losses is required for a waiver of the issuance stamp duty in its ruling A-5073/2020 of November 29, 2021. However, it remains to be seen how the FTA's practice will develop in this regard.

Part of the doctrine also sees a problem in connection with the new accounting law, which has been in force since January 1, 2023: According to art. 671 para. 1 cipher 3 of the Swiss Code of Obligations, contributions by shareholders must be booked in the statutory capital reserve. According to the Swiss Handbook of Auditing, this also includes restructuring contributions¹. Hence, it is argued that a direct offsetting of restructuring contributions with existing losses, as required by the Federal Supreme Court, would be contrary to the applicable accounting law².

If you have any questions, please do not hesitate to contact our experts.

Click here to learn more about our expertise:


[1] Cf. EXPERTsuisse, Schweizer Handbuch der Wirtschaftsprüfung, Volume «Buchführung und Rechnungslegung», Zurich 2023, Part III N 57

[2] Cf. GERNOT ZITTER, «Verlustbeseitigung» als Voraussetzung des Sanierungsfreibetrages, Steuer Revue 2023, 866 ff.
Back

Your Team