Pièges fiscaux du contrat de prêt
Intérêts négatifs, résiliation anticipée et remise de dette
This contribution deals with the tax « traps » of the loan agreement. Loans are usually quite simple from a tax standpoint since they are neutral. Yet, the author examines three specific instances where things do not turn out so well. The first of which is the cancellation of indebtedness, which may result in taxable income (Article 16 par. 1 or Article 18 par. 1 Direct Federal Tax Law). The author acknowledges that the cancellation of indebtedness (remise de dette; Aufhebung durch Übereinkunft) causes a net accretion of wealth. On the other hand, he shows that the tax burden may become too heavy to carry when the taxpayer is in financial distress. Thus, when required by the circumstances, the judge should be able to rely on his power to decide in fairness (Article 4 Civil Code) to depart from the purely fiscal (and open-ended) concept of income. Secondly, this contribution deals with the early termination of the contract. With respect to mortgage credits for example, the…