Property capital gains, how to calculate them?

👉 A property is sold at a forced auction for approximately 50% of the estimated value. Four months later, the purchaser sells the property on to a company of which he is the director and majority shareholder. The resale price is roughly the same as the purchase price. A year later, the company sells the property at market price; at that point, the tax assessment on the capital gain of the original purchaser (the director and majority shareholder of the company) had not yet been notified. The tax authorities treated the sale price to the third party as the basis for calculating the capital gain of the original purchaser.

Federal judges recall their case law regarding the sale of a property to a company in which the seller is a shareholder. When the price is below market value, the shareholder seller makes a (hidden) contribution to the company corresponding to the difference between the market price and the official price.

When the selling shareholder is not the sole shareholder of the acquiring company, federal judges specify that the hidden contribution does not correspond to the full market price, but only to the portion of the market price attributable to the selling shareholder's stake in the company.

Finally, in the presence of multiple shareholders (the seller and other shareholders), it could also be considered that the seller has made a mixed donation (increasing the value of the shares of other shareholders), which could justify deferring the capital gain on property due to a mixed donation (see 4.2.3).

The ruling is in German. It concerns a St. Gallen case. A BGE publication is planned.

Federal Tribunal, ruling 9C_199/2024, of 11 April 2025