Is a shareholders' agreement a gift?

The taxpayer, along with his sons, is a shareholder in the family company. The shareholders have signed a shareholders’ agreement that provides for a pre-emption right for co-shareholders in the event of death or withdrawal from the company, with an exercise price corresponding to the nominal value. One of the sons transfers his 20 shares to the taxpayer (the father) for CHF 20,000.

Four years after the sale, the tax authorities asked the taxpayer why he had sold his 20 shares for CHF 20,000. The tax authorities valued the shares at nearly CHF 7 million, levied gift tax on the transfer from son to father at a rate of 15%, plus a fine equivalent to the amount of tax evaded, resulting in a bill of over CHF 2 million.

The tax authorities rejected the taxpayer’s claim on the grounds that it constituted a mixed gift. However, the fine was reduced by 25%. The cantonal judges upheld the tax authorities’ position.

Federal judges are clarifying that a donation in terms of tax law is not exactly the same as in civil law.
1. Gifts between living persons, gratuitous, with the intention of making a donation (animus donandi) are common to civil and tax notions
2. In fiscal matters, it is not arbitrary to presume the existence of an intention to give (animus donandi) between close persons, when the other conditions of a gift are met. (cons. 3.2.)

Federal judges hold that the CEA dates from 2008. Both the taxpayer and each of the children could be beneficiaries of the right of pre-emption. It was entirely random upon signing to know who would be favoured to the detriment of whom. Moreover, the other son waived his right of pre-emption on his brother's shares. The transferring son was withdrawing from the company, so he had to transfer his shares, in accordance with the CEA.

Given the price determined 9 years before the disposal and the random nature of the beneficiaries of such a clause, there is no *animus donandi* from the taxpayer's son towards his father. The tax authorities have never proven that such a wish to give existed.

The tax office is covering the legal costs of CHF 16,000, plus the taxpayer's costs of CHF 8,000.

The ruling is in French. This is a Vaudois case.

Federal Tribunal, judgment 9C_118/2025 of 22 April 2026