Setting up a company for active investment

[Helix]

@Pinni

don’t think that violating only this one would be a problem. But together with not holding some assets for at least 6 months and usage of derivates it might be enough to be considered a professional investor.

The point of those criteria is safe haven. Only if you check all of them, they say they won’t try to tax your trading as a business.

If a regulation is not clearly against laws (or the constitution), it binds the administration as far as the judge is concerned.

But if you break any of those safe haven criteria, then there is not much binding language in that circular. So it will be a judge “in consideration of all circumstances of the individual case” handing down a judgement. If the administration wants to try, (and you take them to court,) that is.

Looking specifically at point 3 of the safe haven criteria of “Kreisschreiben Nr. 36”:

Original:

Das Erzielen von Kapitalgewinnen aus Wertschriftengeschäften bildet keine Notwendigkeit, um fehlende oder wegfallende Einkünfte zur Lebenshaltung zu ersetzen. Das ist regelmässig dann der Fall, wenn die realisierten Kapitalgewinne weniger als 50% des Reineinkommens in der Steuerperiode betragen.

Deepl translation:

Realizing capital gains from securities transactions is not necessary to replace missing or lost income for living expenses. This is usually the case when the capital gains realized amount to less than 50% of net income in the tax period.

The second sentence is a safe haven upon the first sentence. So if you have any income that is provably enough for living expenses, the second sentence has no importance. Distributions could be that income, fully or in part.

I think @cubanpete_the_swiss employs a rather active strategy including meaningful leverage and many small allocations, deliberately engineered to still check all the safe haven criteria. The capital employed is around 2 million (USD?) as per this post. If I remember correctly they are retired. If they get some pension money that could be enough in and on its own to check criteria number 3.