The case

The dispute is about whether the foundations are to be qualified as securities dealers pursuant to Art. 13 para. 3 StG, in particular as dealers or intermediaries, due to their activities (purchases and sales of shares in B-Holding) in connection with two employee share ownership plans.

Source: Judgement of 26 March 2025 (9C_41/2024) – for publication; Stamp duty Tax – Link

The commentary

Only those who, as investment advisors or asset managers, causally influence the purchase or sale of taxable instruments without themselves being a party to the taxable transaction can be considered intermediaries pursuant to Art. 13 para. 3 lit. b no. 2 StG. The foundations were consistently involved in the disputed transactions as contracting parties and not merely as intermediaries. The foundations can also not be characterised as professional traders either because they bought and sold the taxable deeds for their own account and did not carry out this activity on a professional basis (profit-seeking, economically independent and continuous), nor do they qualify as other securities dealers pursuant to Art. 13 para. 3 lit. d StG, as the legislator restricts the group of other securities dealers to certain legal forms. The conditions for tax avoidance are not met either. Appeal by Foundation “A” upheld.

Both the FTA and the Federal Administrative Court FAC classify foundations that handle employee share ownership plans as (commercial) intermediaries and thus as securities dealers for the purposes of the stamp duty tax StG 13 lit b no. 2. According to the Federal Court this is incorrect.

This decision can also be decisive for trustees, as they do not usually generate a fee from the ‘acquisition’ of deeds; they are not intermediaries with a brokerage fee with regard to the deeds that are transferred to them as trustees.

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