Two foundations aim to promote the acquisition of employee shareholdings by employees, respectively by the group's executives, and to make payments to the group's pension funds. During an external audit by the FTA of various group entities, the federal tax authorities concluded that both foundations are dealers in securities within the meaning of the DTA.
The TAF has confirmed the qualities of a securities dealer within the meaning of the DTn for each of the foundations.
Having expanded on some very interesting procedural matters, the federal judges are analysing Article 13 para. 3 LT, namely who is considered a securities dealer under the DTn (either as an intermediary or as a dealer).
A merchant is someone who buys and sells in their own name (but on behalf of others according to the law), whereas an intermediary puts parties in contact without being a party to the transaction.
As long as intermediaries do not simultaneously manage their clients' securities deposits as a bank or securities firm, the typical activities of investment advisors and wealth managers do not consist of buying or selling taxable securities in their own name.
On the contrary, investment advisors (independent or external) are content to give recommendations, whereas wealth managers can dispose of their clients' assets in their name for their management activities.
Both intermediaries and traders act in a professional capacity, even though the law no longer expressly mentions this since April 1st, 1993.
The activity of an intermediary within the meaning of Art. 13 para. 1 LT must be defined on the basis of the concept of intermediation as it prevails in brokerage contract law. A securities dealer who concludes a transaction as a commission agent in their own name, but on behalf of a third party, is therefore not an intermediary according to Art. 13 para. 1 LT, but a contractual party to the transaction. Art. 17 LT is of no assistance in determining who is a securities dealer within the meaning of the DTn.
Only those who, in their capacity as a placement advisor or wealth manager, have a causal influence on the purchase or sale of taxable securities, without themselves being a party to the taxable transaction, shall be considered as an intermediary within the meaning of Art. 13 para. 3 let. b no. 2 LT. Legal fictions regarding the subjective tax obligations of securities dealers according to Art. 17 para. 3 let. a and c LT do not alter this. (rec. 6.5.1.).
The ruling is in German. It concerns a case from Basel-Stadt. An ATF publication is planned.<\/p>\n\n\n\n
Federal Tribunal, judgment 9C_41\/2024, of 26 March 2025<\/p>\n\n\n\n
<\/p>","protected":false},"excerpt":{"rendered":"
\ud83d\udc49 Deux fondations ont pour but de favoriser l’acquisition de participations de collaborateurs aux employ\u00e9s, respectivement aux cadres du groupe, et effectuer des versements en faveur des caisses de pension du groupe. Lors d’un contr\u00f4le externe par l’AFC de diverses entit\u00e9s du groupe, le fisc f\u00e9d\u00e9ral conclut que les deux fondations sont commer\u00e7antes de titres […]<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-201","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"acf":[],"yoast_head":"\n