Will business kilometers be deductible in 2018
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Art. 26 para. 1 and 2 DBG (SR 642.11), Art. 39 para. 1 and 2 StG (sGS 811.1). If a sales representative receives flat-rate expenses for car costs of CHF 1,000 per month and can account for the trip from the place of residence to the customer as a business trip in accordance with the expense regulations, a deduction of further car costs for the way to the place of work must be refused (Administrative Appeals Commission, Department I / 1, October 20, 2011, I / 1-2011 / 99).
President Thomas Vögeli, members Fritz Buchschacher and Markus Frei; Court clerk Thomas Scherrer
X and Y U-V, complainants,
Cantonal Tax Office, Davidstrasse 41, 9001 St. Gallen, lower court,
Federal Tax Administration, Federal Direct Tax Department, Legal Department, Eigerstrasse 65, 3003 Bern, parties to the complaint,
Direct federal tax (2009 income)
A.- Spouses X and Y U-V live in A in their own home. The husband works as a sales representative at S Schweiz AG, the wife at Z in H. According to the salary statement in 2009, the husband received flat-rate expenses of CHF 8,400 for representation, CHF 12,000 for Car costs and CHF 1,200 for telephone costs. In the tax return, XU declared, on the one hand, the net wage of CHF 117,776 .-- without lump-sum expense allowances and, on the other hand, as professional costs, including expenses for the use of the private motor vehicle between home and place of work of CHF 7,750 .-- (13 ' 800 km at CHF -.56) as well as a deduction of CHF 4,340 for the use of a study in your own house. The tax authorities did not allow the cost of the private motor vehicle for commuting to work and reduced the costs for the in-house office to CHF 3,000. X and Y U-V were assessed for direct federal tax 2009 with a taxable income of CHF 129,100. On December 28, 2010, the obligated parties objected to this assessment. In particular, they challenged the cancellation of the deduction for the cost of the private motor vehicle and pointed out that, according to the vehicle policy of S Schweiz AG, the commute to work is not counted as a business mileage and is therefore not covered by the expenses. It is requested that this be taken into account in the assessment. As a result, the tax authorities asked the taxpayers to submit the detailed logbook, which, according to the vehicle policy, must be kept by those employees who receive flat-rate travel expenses. The opponent stated that it was no longer possible for him to obtain the log book for the period mentioned. He therefore authorizes the tax authorities to make an appropriate deduction. Furthermore, he submitted a confirmation from the employer, according to which he had to attend external appointments on a daily basis and the vehicle expenses expressly exclude compensation for commuting. The tax authorities rejected the objection with a decision of April 15, 2011. It stated that, in accordance with Section 7.0 of the Vehicle Policy, the employee undertakes to keep a log book truthfully. The logbook serves as proof for the tax office as well as for S Schweiz AG that the flat-rate vehicle allowances paid are based on business kilometers. The opponent did not submit a log book. According to the leasing contract, the mileage of his car is limited to 24,000 kilometers per year. The appropriateness of the flat-rate car expenses of CHF 12,000 could not be verified; nevertheless, these were fully recognized as reimbursement of expenses. The claimed costs for the commute are not proven.
B.- X and Y U-V filed a complaint against the appeal decision of April 15, 2011 with the submission of May 16, 2011 to the Administrative Appeals Commission and requested that the complete cancellation of the deductions for the person liable to work should be reconsidered. The fact that the preparation of the proof of the costs for the commute to work represented a disproportionate effort had to be taken into account, and the two parties had to negotiate a comparison about an appropriate number of kilometers for the deduction of the commute.
In its consultation on July 22, 2011, the lower court requested that the complaint be dismissed at a cost. The Federal Tax Administration tacitly waived a consultation. The complainants were given the opportunity to comment on the prior consultation. They did so with a submission dated September 19, 2011.
The explanations given by those involved in the proceedings in support of their applications will be dealt with in the following considerations, insofar as they are material.
1.- The prerequisites for entry are to be checked ex officio. The Administrative Appeals Commission is responsible for making a decision on the matter. The authority to file a complaint is given. The complaint of May 16, 2011 was submitted in good time. In terms of form and content, it meets the legal requirements (Art. 140, Paragraph 2 of the Federal Act on Direct Federal Tax, SR 642.11, abbreviated: DBG; Art. 7 of the Ordinance on the Federal Act on Direct Federal Tax, sGS 815.1; Art. 41 lit. h No. 1 of the Act on the Administration of Administrative Justice, sGS 951.1, abbreviated: VRP). The complaint must be dealt with.
2.- The only thing in dispute is the deductibility of the costs claimed by the complainant of CHF 7,750 for commuting to work. The reduction in the deduction for the office in the home remained unchallenged in the complaint.
a) The complainant states that as a sales representative he is absolutely dependent on the use of a car and refers to the employer's certificate. S Schweiz AG leaves its employees free to use a company car or to use a private car in return for a corresponding expense allowance in accordance with the vehicle policy. The main task of the salesperson in the field is to visit customers. The area that it has to cover extends from Buchs to Steinach and Schwägalp as well as across the two cantons of Appenzell. The vehicle policy clearly states that the compensation of CHF 12,000 per year only applies to the kilometers driven for business purposes. The way to work is therefore not compensated for with the expenses. Tax Office A was asked several times to determine which, in its opinion, would be an appropriate number of kilometers to commute to work. Unfortunately, this request was not granted. The truthful creation of the logbook for 2009 is practically impossible today. There was an oral agreement with the personnel manager of his employer that he did not have to keep the logbook. For practical reasons, his agenda is not complete (making appointments during the day, spontaneous customer visits, emergencies, etc.). If the logbook were created subsequently, the data would on the one hand be more than incomplete and on the other hand this would only be possible with a very large expenditure of time. The agenda is managed as an Outlook calendar and only available from November 2010 after a system change. Since the vehicle policy expressly excludes the commute from the reimbursement of expenses, the position is taken that the complainant is entitled to a minimum deduction for commuting.
b) According to Art. 26 (1) (a) DBG, the necessary costs for travel between home and work can be deducted as professional costs in the case of gainful employment, as well as the necessary additional costs for external catering (lit. b) and the rest of the work costs required by the profession (lit. c). Flat rates are set for the professional costs according to Paragraph 1 lit. a - c; in the case of paragraph 1 letters a and c, the taxpayer is free to provide evidence of higher costs (Art. 26 paragraph 2 DBG). Based on this provision, the Federal Department of Finance issued the Ordinance on the Deduction of Professional Costs for Employment from Direct Federal Tax (Occupational Costs Ordinance, SR 642.118.1, abbreviated: BKV). According to Art. 5 Para. 1 BKV, the expenses actually incurred can be deducted as necessary costs for journeys between home and work when using public transport; If there is no public transport available or if it is objectively unreasonable to use it, which is the case when it is necessary to use a private car for professional purposes, the costs of the private vehicle can be deducted in accordance with the flat rates according to Art. 3. We reserve the right to provide evidence of higher professional costs (Art. 5 Para. 3 BKV). According to the appendix to the BKV, a deduction of CHF 70 per kilometer is granted for the use of private vehicles.
Taxpayers can only deduct those costs that they have borne themselves. What is financed by the employer does not represent an expense for the employee. It is therefore necessary to coordinate between the reimbursement of the professional expenses by the employer through paid expenses and the deductions claimed by the employee for the professional expenses. Otherwise there would be a double tax deduction for the same expenses (see Bosshard / Mösli, Der neue Lohnausweis, Muri / Bern 2007, p. 32; Knüsel, in: Commentary on Swiss Tax Law, Volume I / 2a, 2nd edition 2008, N 5 to Art. 26 DBG).
The assessment authority generally bears the objective burden of proof for tax-justifying, the taxpayer, however, for tax-reducing elements of the tax claim, if the legally relevant facts remain uncertain despite an ex officio investigation (see Richner / Frei / Kaufmann / Meuter, Handkommentar zum DBG, 2nd ed . 2009, N 78 on Art. 123 DBG).
c) Flat-rate car expenses of CHF 12,000.00 were paid to the complainant. According to the salary statement, the expenses are based on an expense regulation approved by the Canton of Zurich. The tax authorities allowed the flat-rate car expenses of CHF 12,000 to be deducted in full as professional expenses. The complainant claims an additional allowance for commuting. In accordance with the expense regulations, monthly vehicle lump sums are paid out to those field service employees who can be shown to drive over 12,000 kilometers per year in their private vehicle on business. The complainant's lump sum for expenses of CHF 12,000 per year corresponds to an annual performance of 20,000 to 25,000 kilometers within one year (Section 1.0). Clause 7.0 of the vehicle policy states that the employee undertakes to keep a log book truthfully so that the business kilometers can be checked and the adjustments made. All business kilometers driven with the private vehicle must be entered in the logbook every day. The log book serves as evidence for the tax office and also for S Schweiz AG that the flat-rate vehicle allowances paid were based on business kilometers. The logbook also serves as a means of making adjustments to the vehicle flat rate. In accordance with Paragraph 2, the log book is provided by S Schweiz AG free of charge. It is collected and checked on a random basis by the car park control center. If an employee fails to keep the log book or if he cannot present it within 10 days, the vehicle lump sum payments will be stopped immediately and all lump sums up to the last valid entry in the log book must be repaid in full. Sending in or losing the logbook does not release you from reporting the business kilometers. In Clause 8.0 it is stated that the commute to work is not considered a business kilometer and must therefore not be taken into account for the evaluation of the vehicle flat rate. The distance from place of work to destination is generally counted as the route for business kilometers driven. The distance from the employee's place of residence to the place of work does not count as a billable commute. If the employee drives directly from his place of residence to the customer, the route from the usual place of work to the customer's location may be billed; However, if the distance between the employee's place of residence and the customer's location is shorter, only this distance may be billed.
Despite repeated requests by the tax authorities, the complainant did not submit the log book. He claims that - contrary to the clear obligation in the vehicle policy - he did not have to keep a logbook due to an oral agreement with the HR manager of his employer. A truthful creation of the logbook for 2009 is therefore "practically impossible today". By submitting the service booklet for the vehicle used for business purposes, the complainant has also not made it possible to gain clues about its mileage in 2009. In this situation, there was no reason for the tax authorities to set a deduction within the framework of an agreement or even to make an offer of settlement to the obligated party.
In principle, according to the vehicle policy or the expense regulations, compensation for travel costs between the place of residence and the place of work is not provided. In this respect, the complainant is to be agreed. However, it is expressly stated in the regulations that the route between the usual place of work and the customer's location may be billed if the employee drives directly from his home to the customer. The complainant does not provide any information, as this is often the case in his work. Due to his place of residence in the midst of the business area allocated to him, it should happen relatively often that he drives directly from his place of residence to a customer. After confirmation from the employer on March 2, 2011, a so-called office day with a meeting takes place once a week in St. Gallen. It therefore seems unlikely that the complainant regularly first drives from his place of residence A to St. Gallen on other days and only then visits customers in the area between Steinach and Buchs and in the two cantons of Appenzell. In addition, the mileage of the vehicle used by him is limited to 24,000 km according to the leasing contract. The flat-rate expense allowance corresponds to a business mileage of 20,000 to 25,000 kilometers. This would mean that noteworthy private journeys would only be possible to a limited extent. In particular, however, it is impossible in this situation that trips to work of 13,800 km, as declared by the complainant, are made. The fact that the complainant, according to his own account, occasionally uses his wife's car does not change this. This also claimed that the car had to be used on a daily basis to commute to work. Given this situation, it is obvious that the complainant does not have to drive a noteworthy distance between home and work.
In the absence of documentation, in particular for the entire mileage, the complainant cannot prove that the flat-rate vehicle compensation of CHF 1,000 per month did not also cover any journeys between home and work. This is all the more true as the complainant asserts that the vehicle policy did not apply to him due to an oral agreement with the HR manager with regard to keeping the logbook. His employer was therefore not aware of the extent to which she had also covered travel costs between the place of residence and the place of work with the flat-rate compensation. Under these circumstances, the complainant cannot counteract the tax disregard of additional travel costs for the journey between the place of residence and work with the vehicle policy, according to which these costs are not reimbursed.
d) In summary, the above considerations show that the lower court rightly refused an additional deduction for commuting costs. Consequently, the appeal must be dismissed.
3.- In accordance with the outcome of the proceedings, the complainants are to be charged the costs of the proceedings (Art. 144 (1) DBG). A decision fee of CHF 500.00 is appropriate (cf. Art. 144 Para. 5 DBG in conjunction with Art. 7 Clause 122 of the Court Fees Ordinance, sGS 941.12). The advance payment of CHF 500 is to be offset.
1. The appeal is dismissed.
2. The complainants pay the costs of the proceedings by
CHF 500, with the advance payment of CHF 500 being offset.
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