What is STP Disease
|StP 194 No. 1|
If there are circumstances in which paying the tax or a tax fine is impossible or extremely hard for the taxable person, they can be granted a waiver in whole or in part upon written request in accordance with Section 194 (1) StG. The interest claim follows the fate of the main claim.
Section 194 (1) of the StG is an "optional" provision. There is therefore no legal entitlement to a remission (BGE 2D_63 / 2008 of June 27, 2008, 2D_106 / 2008 of October 13, 2008). The application is assessed according to the best judgment.
The request must not serve to delay the procurement process. The purchasing authority therefore does not respond to requests that are submitted after a payment order has been served (Art. 38 Paragraph 2 SchKG) (Section 50 Paragraph 4 StV). If the debt collection procedure is still outstanding (loss certificate claims), a new application for remission can be submitted for these in accordance with the case law of the tax appeals commission.
The application must be submitted in writing to the reference authority. It must contain an application and a brief justification (Section 10 VRG). Because the taxable person has an obligation to cooperate, it is up to them to prove the conditions for the waiver. If the applications are unsatisfactory, a grace period will be set to improve the application. If no improvement is made within the deadline and the existing files are insufficient to make a substantive decision, the request will not be accepted (Section 12 (3) in conjunction with Section 10 VRG).
The tax waiver questionnaire to be submitted together with the application for waiver can be obtained from the local tax office or downloaded from the Thurgau tax administration website.
Download tax waiver questionnaire
The withdrawal authority decides on requests for remission of up to CHF 5,000 per tax year (see section 3.2), in all other cases the tax administration decides (Section 194 (3) StG). The tax administration decides on requests for exemption regarding inheritance and gift taxes (Section 37 (1) ESchG).
Decisions by the purchasing authority or tax administration can be appealed to the tax appeals committee; their decisions are final (Section 194 (4) StG in conjunction with Section 37 (2) ESchG). Decisions of the municipal reference authorities can be appealed by the tax administration to the tax appeals commission (Section 194 (5) StG).
3.2. Referring authorities
Obtained from the political municipality (§ 32 Abs. 1 StV):
- the state and municipal taxes of natural and legal persons (including the minimum tax on real estate);
- the withholding tax.
The tax administration is responsible for the following:
- direct federal tax (Art. 160 DBG);
- inheritance and gift tax (Section 32 (1) ESchG);
- withholding tax on pensions and lump-sum payments (Section 32 (2) StV);
- real estate tax (Section 32 (2) StV);
- property gains tax (Section 32 (2) StV);
- all buses (Section 32 (2) StV).
The property transfer tax is collected by the land registry in accordance with Section 32 (3) of the StV.
A waiver application can only be made for legally binding, definitely assessed taxes or tax fines. A deferral is possible for provisional tax invoices (see StP 193 No. 1).
In the absence of a claim to be waived, no waiver can be granted for taxes or tax fines that have already been paid. In cases of withholding tax or cases in which the payment has been made subject to reservation, a tax waiver or tax fines can still be granted after payment.
The issuing authority is not allowed to check a legally binding final invoice for its legality and material correctness and / or to correct omissions in the assessment procedure by (partial) issuance. In particular, a waiver may not be granted for the purpose of changing an assessment at one's own discretion. The issuing authority does not have to ask about the completion of the assessment; Whether it is an ordinary or a discretionary assessment is fundamentally irrelevant for the assessment of the application for remission. The only decisive factor is whether the prerequisites for issuance are met.
A waiver can be granted if paying the tax or a tax fine becomes impossible or extremely hard (Section 194 (1) StG). Pursuant to Section 194 (2) StG, the reasons for a waiver are in particular incapacity for work, ongoing illness, accidents or need for support. The reasons for the waiver are not final. The only decisive factor is whether there is a reason that would mean that paying the tax or a tax fine would mean great hardship for the taxable person.
According to § 50b StV, there is a hardship case if the entire amount owed is disproportionate to the financial capacity of the taxable person. In the case of natural persons, a disproportion exists in particular if the tax liability cannot be paid in full in the foreseeable future despite the reduction in the cost of living to the subsistence level.
For the payment of the amount owed, an intervention in the assets is generally reasonable (§ 50b StV).
In the case of short-term fluctuations in income, which are taken into account in the ordinary assessment, there is no remission, but at most a deferral.
In making its decision, the issuing authority takes into account the entire economic situation of the taxable person. The decisive factor is primarily the situation at the time of the decision, as well as the development since the assessment to which the application for waiver relates, as well as the prospects for the future (Section 50a (2) StV). If the taxable person had been able to make timely payment at the due date, this will be taken into account in the remission decision.
In accordance with Section 50a (3) of the StV, the payment authority checks in particular whether restrictions in the standard of living are, or would have been, necessary and reasonable for the taxable person. Restrictions are generally considered to be reasonable if the expenses exceed the cost of living resulting from the calculation of the subsistence level under debt enforcement law.
4.3. Causes / principle of victim symmetry
When assessing whether a tax exemption is to be granted in whole or in part, not only is it checked whether there is a hardship case, but the causes that led to it are also examined.
A cause justifying the remission exists in accordance with Section 50b (2) StV if the over-indebtedness is due to extraordinary circumstances (in particular disability, unemployment, high health or care costs not covered by third parties) that are due to personal circumstances and not from are indebted to the taxable person. If, on the other hand, the taxable person is indebted for over-indebtedness, for example through guarantee obligations, debts as a result of an excessive standard of living or the breach of their tax duty to cooperate, a remission can only be granted if the other creditors, whose claims are also in the 3rd class in accordance with Article 219 paragraph 4 SchKG, waive their claims to the same percentage (Section 50b (3) StV).
Ultimately, the tax waiver in accordance with Section 50a (1) of the StV has to benefit the taxable person and not their creditors. This principle, known as victim symmetry, applies in accordance with Section 50b (3) of the StV with regard to creditor claims of equal rank.
If, in addition, privileged claims of 1st and 2nd class according to Article 219 paragraph 4 DEBA are affected (e.g. premium and cost sharing claims from social health insurance, contribution claims from AHV / IV / UV / ALV, VAT), a waiver can also be granted if these creditors do not grant a remission. The treasury as a creditor is not placed in a worse position as a result, since it would have to lag behind the privileged creditors anyway.
4.4. Total debt restructuring
In the case of a debt restructuring, a judicial debt restructuring agreement (Art. 293 et seq. SchKG) is generally agreed to without further ado in relation to tax or fines.
An extrajudicial debt restructuring agreement, which consists of a number of debt relief agreements, the content of which can be determined according to the principle of freedom of contract, is accepted with greater reluctance. The general elimination requirements apply (cf. Sections 4.1 to 4.3.).
If the taxable person is responsible for the over-indebtedness, an out-of-court debt restructuring agreement can therefore only be approved if the other creditors of equal rank (Art. 219 (4) DEBA) are willing to waive their claims to the same percentage (principle of victim symmetry ). In this case, the applicant must enclose the signed, confirmed declarations of intent or waiver of the other, equal creditors with his application.
5. Special remarks on individual taxes
Special features of the waiver of property gains taxes, transfer taxes, real estate taxes, withholding taxes, additional taxes, tax fines, inheritance and gift taxes as well as the waiver in favor of legal persons are described in the tax practice under StP 194 No. 2.
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