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Recent Swiss Federal Supreme Court case law confirms an underlying trend: in tax matters, economic reality increasingly takes precedence over legal form. For entrepreneurs and SME shareholders, several decisions issued by the Swiss Federal Supreme Court at the end of 2025 and during the first half of 2026 provide important practical insights. These rulings address, in particular, the holding of shareholdings, corporate financing, business valuation, and the transfer of created value.
Shareholding: Private Wealth or Business Assets?
Swiss Federal Supreme Court 9C_54/2025 (19 November 2025)
The Swiss Federal Supreme Court reiterated that a shareholding held by a self-employed individual does not automatically qualify as private wealth. Where the participation has a close economic connection with the professional activity carried out, it may be classified as business assets. Among the factors considered are the complementarity between the activities of the company and those of the entrepreneur, as well as the degree of influence exercised over the company.
Practical implication: The sale of a shareholding may result either in a tax-exempt capital gain or in taxable income. Regularly reviewing the tax classification of strategic shareholdings can help avoid unexpected tax consequences in the event of a future disposal.
Valuation of Service Companies
Swiss Federal Supreme Court 9C_380/2025 (25 February 2026)
The Swiss Federal Supreme Court emphasised that the practitioner’s method should not be applied mechanically where a company’s value depends primarily on its founder or on a limited number of key individuals. In the case of a highly personalised consulting firm, the Court accepted that an adjustment to the valuation method could be justified in order to better reflect the economic reality of the business.
Practical implication: This decision highlights that a company’s value is not determined solely by its historical financial results, but also by its ability to generate income independently of the individuals currently driving its development.
This ruling is particularly relevant for fiduciary firms, consulting practices, law firms and other service businesses in the context of succession planning, gifts or business transfers.
Shareholder Loans Under Scrutiny
Swiss Federal Supreme Court 9C_216/2025 (10 April 2026)
In the case examined, the Swiss Federal Supreme Court confirmed that a shareholder current account could be regarded as a simulated loan where no genuine intention to repay could be demonstrated. The classification of a shareholder loan depends on its actual economic characteristics. The tax authorities will typically assess factors such as the borrower’s solvency, the existence of security, the effective payment of interest, the presence of a written agreement, and the repayment terms.
A loan granted under conditions that an independent third party would not have accepted may be reclassified as a constructive dividend or another form of taxable benefit.
Practical implication: Shareholder current accounts and intragroup financing arrangements remain key areas of focus in business transfers and tax audits. Appropriate documentation and arm’s length terms continue to be essential.
Sales Price: Tax-Exempt Capital Gain or Taxable Income?
Swiss Federal Supreme Court 9C_164/2025 (1 May 2026)
The Swiss Federal Supreme Court examined the tax treatment of a payment of CHF 3.4 million received in the context of a business acquisition transaction. Beyond the labels assigned by the parties, the key issue was whether the payment formed part of the sale proceeds qualifying as a tax-exempt private capital gain or whether it constituted remuneration for activities performed by the taxpayer and was therefore taxable as income.
The ruling confirms that the tax authorities focus primarily on the economic substance of a transaction. Where a payment compensates a service, involvement, or the exercise of influence in connection with the transaction, it cannot benefit from the tax treatment applicable to private capital gains.
Practical implication: In the context of a business sale, distinguishing between a tax-exempt capital gain and taxable income can be particularly challenging. Earn-outs, non-compete payments, consulting agreements and other payments made to sellers are regularly subject to close scrutiny. A consistent transaction structure and robust documentation remain essential to reduce the risk of tax recharacterisation.
Conclusion
The message from the Swiss Federal Supreme Court is consistent: the economic substance of a transaction remains the decisive factor. Tax authorities and courts are placing less emphasis on the formal legal structure of an arrangement and increasing importance on its actual economic effects.
The situations examined by the Court often originate from decisions taken several years before a business transfer, reorganisation or sale. Conducting an assessment at an early stage generally helps identify tax risks and mitigate their potential consequences.
RSM specialists regularly support entrepreneurs, shareholders and family-owned businesses with:
- reviewing the holding structure of shareholdings;
- analysing financing arrangements and shareholder current accounts;
- business valuations in the context of succession planning and business transfers;
- the tax planning of business sales, acquisitions and reorganisations.
A proactive approach can often help secure strategic transactions before they come under scrutiny from the tax authorities.
