The case

In the course of the tax period 2021 A declared an imputed rental value amounting to CHF 20,611, reducing the gross imputed rental value amounting to CHF 26,500 by two ninths (i.e. CHF 5,889) in accordance with a deduction for underutilisation as two of the rooms of the property had no longer been used since his divorced wife and his elder son had not used them after moving out.

Source: 4 March 2025  9C_609/2024 (German) – Decision will be published.

The commentary

It is to be assumed that the taxpayer, despite requiring less space after his divorce, had opted for remaining in the property instead of selling it as he was the sole owner, i.e. he had deliberately decided against selling the property that exceeded his housing needs. This means that the space reserve had been based on factors that could be influenced. Even though the solution, based on the divorce decree, can be both explained and understood for social reasons and does, most probably, make sense from an economic point of view, it was the tax payer’s decision to go on living in the property, and the fact that he had been under time pressure when making this decision, does not change anything about the legal situation. Both jurisdiction and jurisprudence as well as administrative practice agree that deduction for underutilisation as defined by Art. 21 Abs. 2 DBG is only granted under (very) restricted conditions which do not apply in the case described above. This is further underlined by the fact that the taxpayer would not risk being forced to sell his property or facing financial hardship unless granted the deduction for underutilisation, i.e. financial hardship can be excluded and the deduction must thus not be granted.

The appeal of the tax authority of Zurich was approved and the original appeal decision was confirmed.

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