Business Valuation and Maintenance Law – “Of the Fiver and the Weggli”
We received the question of how companies are to be valued for the purpose of determining maintenance payments. The common practice of the administration is to use the value determined for tax purposes, i.e. to apply the practical procedure in the form of Kreisschreibens Nr. 28 (KS 28).
First of all, the same applies here: The purpose of valuation determines the method of valuation. A look at the law and case law shows that the duty to support under civil law (Art. 328 para. 1 CC) is based on income and assets. However, only the income is determined more precisely as the “taxable” income. However, the fact that assets are also to be assessed according to tax principles – and if so, according to what? – is a unilateral determination by the administration that cannot be justified by law.
Furthermore, the obligation to support must take into account the economic capacity of the obligor (e.g. Dispatch on an Amendment to the Swiss Civil Code, 13.101, p. 540). The practical procedure developed for the purposes of wealth tax in the version of KS 28 serves the rational handling of mass proceedings and is recognised as not being able to take into account the economic capacity that can only be determined individually (most recently Widmer/Nazareno/Gautschi, EF 2019, p. 761).
The adoption of the tax values is therefore at best to be recognised as a cost-effective simplification. In our opinion, however, it is not mandatory and it is therefore advisable to seek legal advice in the event of a disagreement and to submit one’s own valuation depending on the situation and values.
In any case, double counting should be avoided when calculating income and assets: Dividends considered as income and other remuneration related to the shareholder position (rents, licences, etc.) naturally fall away if the performing company is sold. The valuation at “market value” already conceptually assumes such a realisation. Anything else is – even in the view of the Federal Supreme Court – an “unconcerned” approach (BGE 136 III 1 p. 1, E.5), which is to be criticised. Here, too, there is no such thing as a nickel and dime.