Anything that is declared by federal legislation to be subject to, or exempt from value added tax, special consumption taxes, stamp duty or withholding tax may not be made liable to similar taxes by the Cantons or communes.
Art. 134 BV prevents cantons and municipalities from levying the same type of taxes as the Confederation. The prohibition on similar taxes applies to four federal taxes: value added tax, special consumption taxes, stamp tax and withholding tax.
The provision protects taxpayers from double taxation by the Confederation and cantons for the same type of tax. Where federal legislation designates a tax object or declares it tax-exempt, cantons and municipalities may not levy a similar tax on it. The prohibition is absolute and admits no exceptions.
Similar taxes according to the Federal Supreme Court exist only where there is largely identical technical design (BGE 140 I 176 E. 8). The decisive factors are the assessment base, collection technique and tax subject. The Federal Supreme Court interprets the concept restrictively - even small technical differences can justify the permissibility of a cantonal tax.
Example from practice: A Thurgau municipality wanted to levy a quantity-based charge on spirits. The Federal Supreme Court permitted this because the charge differed fundamentally from the turnover-based value added tax - despite identical tax object (distilled spirits). The cantonal tax burdened the quantity sold, whereas value added tax burdens value creation (Judgment 2P.316/2004 E. 3.2).
The prohibition only covers taxes in the proper sense, not causal levies such as fees or preferential charges (BGE 86 I 97 E. 2). Cantons can therefore continue to levy fees for specific state services, even where the Confederation taxes similar objects.
In legal practice, problems arise mainly in distinguishing between taxes and causal levies and in assessing technical differences between federal and cantonal levies. Legal doctrine partly criticises the Federal Supreme Court's restrictive interpretation as too "canton-friendly" (Biaggini, BSK BV, Art. 134 N. 6).
N. 1 Art. 134 BV consolidates the harmonisation provisions that were scattered across various norms under the old federal constitution (Art. 32bis para. 5, Art. 36ter, Art. 41bis para. 2 and Art. 41ter para. 2 old FC). According to the Federal Council's message of 20 November 1996 on the new federal constitution, the norm aims at a «formal updating» of the existing legal situation (BBl 1997 I 389). The constitution-maker intended no material change to the established tax order between the Confederation and the cantons.
N. 2 The provision is historically rooted in the gradual expansion of federal competences in the tax area. While the cantons originally had comprehensive tax sovereignty, the Confederation's financing needs led to the successive introduction of federal taxes. With each new federal tax law, the question of delimitation from cantonal levies arose in order to avoid excessive burden on taxpayers (Behnisch, BSK BV, Art. 134 N. 1).
N. 3 Art. 134 BV is found in the third title (Confederation, Cantons and Communes), third section (Financial Order) of the Federal Constitution. The norm supplements the Confederation's tax competences (Art. 128-133 BV) through a negative competence norm in favour of the cantons and communes. It concretises the federalist principle enshrined in Art. 3 BV in the tax area.
N. 4 The provision is closely connected with:
→ Art. 127 para. 2 BV (principles of taxation)
→ Art. 128-133 BV (individual federal taxes)
→ Art. 3 BV (subsidiarity of federal competences)
↔ Art. 127 para. 3 BV (prohibition of intercantonal double taxation)
N. 5 The harmonisation requirement stipulated in Art. 134 BV differs from the prohibition of intercantonal double taxation (Art. 127 para. 3 BV). While Art. 134 BV regulates the vertical relationship between the Confederation on one hand and cantons/communes on the other, Art. 127 para. 3 BV covers the horizontal level between the cantons (→ Art. 127 BV).
N. 6 The elements of Art. 134 BV require three components:
Federal legislation must designate a tax object
It must concern value added tax, special consumption taxes, stamp tax or withholding tax
The cantonal or municipal tax must be «of the same type»
N. 7Designation by federal legislation: What matters is not the Federal Constitution itself, but the concretising federal legislation. The term «designates» encompasses both the positive description of the tax object and the explicit tax exemption of certain circumstances (BGE 140 I 176 E. 8.2).
N. 8Federal taxes covered: The enumeration in Art. 134 BV is exhaustive. Notably not covered are direct federal tax and other federal levies. Among the special consumption taxes fall tobacco tax, beer tax, mineral oil tax and automobile tax (Art. 131 BV).
N. 9Same type: This is the central and most disputed element of the offence. The Federal Court interprets the concept of same type restrictively and focuses primarily on the design of the tax. Case law has developed various delimitation criteria:
N. 10 If the elements are fulfilled, cantons and communes are prohibited from levying taxes of the same type. The prohibition is absolute and knows no exceptions. Existing cantonal or municipal taxes become unlawful upon the introduction of a federal tax of the same type and must be repealed.
N. 11 The prohibition only covers taxes in the proper sense, not causal levies such as fees or preferential burdens. The delimitation follows general criteria: taxes are owed without preconditions and serve general state financing, while causal levies compensate for a special counter-performance or special advantage (BGE 140 I 176 E. 3.1).
N. 12Interpretation of same type: Academic opinion is split in its assessment of Federal Court case law:
Biaggini (BSK BV, Art. 134 N. 6) criticises the practice as «canton-friendly» or «more treasury- than citizen-friendly», because the cumulation of taxes is merely replaced by coexistence.
Behnisch (BSK BV, Art. 134 N. 7, 20) rejects the case law that focuses on financial science categories rather than legal-technical criteria. He demands that the Federal Court should abandon its «far too restrictive stance».
Vallender (StR 1997, 1 ff.) defends the Federal Court's differentiating approach as appropriate.
N. 13Civil law vs. tax law approach: There is a methodological dispute regarding the delimitation of stamp duties. The Federal Court has opted for a civil law approach and accepted a burden with both taxes (Behnisch, BSK BV, Art. 134 N. 29). Academic opinion is divided on this:
Beusch (Commentary StG, Art. 3 N. 15 ff.) supports civil law qualification
Blumenstein/Locher (System, p. 358) advocate for an economic approach
N. 14 When examining a cantonal or municipal tax for its compatibility with Art. 134 BV, the following procedure should be followed:
Qualification of the levy as a tax or causal levy
Examination of whether one of the federal taxes mentioned in Art. 134 BV exists
Detailed analysis of the technical design of both taxes
Comparison according to Federal Court criteria
N. 15 Practice shows that identical tax objects do not necessarily lead to same type. What matters is the concrete design. Thus the Federal Court has considered quantity-dependent cantonal alcohol levies as permissible because they differ from turnover-dependent value added tax (Judgment 2P.316/2004 E. 3.2; Judgment 9C_759/2023 E. 2.2).
N. 16 For cantonal legislation, a prior analysis of the technical design of the relevant federal taxes is recommended. Deviations in the assessment basis, collection technique or the circle of taxpayers can justify the permissibility of a cantonal tax. In case of doubt, an alternative design as a causal levy should be examined.
BGE 140 I 176 of 27 March 2014 cons. 8
Second home tax of the municipality of Silvaplana: similarity to the property tax also levied is denied.
The second home tax differs from the general property tax through its specific steering character and the limited tax liability only for unmanaged second homes.
«It is not arbitrary to deny the similarity between the second home tax and the property tax also levied (cons. 8). The second home tax does not effect an inadmissible restriction of the guarantee of ownership (cons. 9).»
Judgment 2P.316/2004 of 31 October 2005 cons. 3.2
Thurgau levy on spirits: distinction from value added tax.
Quantity-dependent cantonal levy does not violate Art. 134 BV, as it fundamentally differs from the turnover-dependent value added tax.
«The disputed levy, in contrast to value added tax, is quantity- and not turnover-dependent, because it is levied on the sold volume of spirits and not, for instance, on the (monetary) turnover achieved thereby. It does not burden value creation like value added tax, but is assessed according to the quantity sold between a levy minimum and maximum.»
BGE 128 I 102 of 30 January 2002 cons. 5
Solothurn hospitality industry licence fee: admissibility after the abolition of Art. 31 para. 2 old BV.
The new Federal Constitution does not generally exclude cantonal trade taxes, as long as they are not similar to federal taxes.
«The levying of licence fees is not excluded solely because the new Federal Constitution no longer explicitly speaks in favour of the admissibility of cantonal trade taxes, as was still the case in Art. 31 para. 2 old BV.»
Judgment 2P.316/2004 of 31 October 2005 cons. 4.2-4.6
Cantonal alcohol levies: continuation of the previous order under Art. 134 BV.
Art. 134 BV continues the consolidated regulation of Art. 32bis, 36ter, 41bis and 41ter old BV, without further restricting cantonal taxation of retail trade in spirits.
«There are no indications that the constitutional legislature of 1999 wanted to further restrict the taxation of retail trade in spirits within cantonal territory by the cantons (Art. 32bis para. 8 old BV) beyond the requirement for non-similar design of the cantonal tax.»
Judgment 9C_759/2023 of 18 January 2024 cons. 2.2
Aargau alcohol levy: online mail order and levy liability.
Cantons may levy periodic licence fees for trade in spirits based on Art. 41a para. 6 AlkG, including for online sales.
«The assessment of an annual levy according to the quantity sold can be based on the criterion 'significance of the business operation' (Art. 41a para. 6 AlkG). A similar tax within the meaning of Art. 134 in conjunction with Art. 131 para. 1 lit. b BV is not present.»
BGE 86 I 97 of 8 June 1960 cons. 2
Fire service contribution Villeneuve: prohibition of double taxation applies only to taxes in the proper sense.
The prohibition of double taxation does not cover fees and preferential charges, but only genuine taxes.
«L'interdiction de la double imposition ne vise que les impôts au sens propre et non les émoluments ou les charges de préférence.»
BGE 122 I 213 of 11 April 1996 cons. 2c/2e
Geneva «droit des pauvres»: specification of similarity in excise taxes.
Cantonal excise taxes are admissible if they do not follow the same burden concept as federal taxes.
«However, their excise taxes levied based on Art. 3 BV may not be similar, that is, may not follow the same burden concept as the excise taxes already levied by the Confederation.»
BGE 137 I 145 of 21 December 2010 cons. 4
Real estate gains tax on out-of-canton property dealer: distinction from Art. 134 BV.
The prohibition of similar taxes in Art. 134 BV refers only to the relationship between the Confederation and the cantons, not to intercantonal relationships.
«The capture of gains from property dealers with the real estate gains tax does not violate prohibitions of double taxation, insofar as the corresponding cantonal provisions are compatible with superior law.»