Citation: Kathrin Egli Arginelli, Unfair conduct by taxpayers when determining tax domicile in an intercantonal relationship, in zsis) 2/2025, A8, N [...] (publ.zsis.ch/A8-2025)
Disclaimer: The views expressed in this article are those of the author in her personal capacity and do not in any way bind the Tax Administration of the Canton of Ticino. In recent years, the Federal Supreme Court has increasingly addressed the issue of tax domicile in intercantonal contexts, often triggered by a purely formal transfer of residence or registered office from a high-tax to a low-tax canton.
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Disclaimer: The views expressed in this article are those of the author in her personal capacity and do not in any way bind the Tax Administration of the Canton of Ticino.
In recent years, the Federal Supreme Court has increasingly addressed the issue of tax domicile in intercantonal contexts, often triggered by a purely formal transfer of residence or registered office from a high-tax to a low-tax canton.
The Federal Supreme Court has since abandoned its previous practice, under which a taxpayer forfeited the right to appeal in cases of intercantonal double taxation if they acted in bad faith—such as by misrepresenting facts. The canton not entitled to levy taxes must therefore, in principle, refund the taxes already collected even in cases of dishonest conduct by the taxpayer, thereby eliminating intercantonal double taxation. However, such dishonest or even unlawful conduct may lead to criminal proceedings for attempted or completed tax evasion.
Third parties, such as representatives or employees of the taxpayer, may also be prosecuted for incitement or aiding and abetting tax evasion, for example by providing a fictitious domicile with the intent or knowledge that it will be claimed as the tax domicile in the tax return.
Since tax evasion presupposes a violation of procedural obligations, this article examines these obligations in greater detail, particularly the taxpayer’s duty to cooperate, both in the ordinary assessment procedure and in the tax domicile procedure. Finally, the article also addresses the back-tax procedure, taking into account the latest case law of the Federal Supreme Court regarding the concepts of “unknown” or “new” facts and evidence.
1. Change in the Federal Supreme Court’s Practice Regarding Breaches of Fiduciary Duty
In recent years, the Federal Supreme Court has increasingly had to rule on the tax domicile of natural and legal persons in intercantonal matters. These cases often involved a purely formal transfer of residence or registered office, typically from a high-tax canton to a low-tax canton.
For example, in a case from Ticino, it was claimed that the residence had been transferred to the canton of Zug, a
