Overview of the tax law decisions of the Swiss Federal Administrative Court published in the week of 3 - 9 July 2017.

  • Judgment of 19 June 2017 (A-6700/2016): Radio and television reception fees; procedural costs; obligation to pay fees during a stay abroad; the first-instance decision does not comply with the legal requirements regarding the obligation to state reasons; the complainant's right to be heard was infringed; the complaint is upheld.
  • Judgment of 27 June 2017 (A-1648/2016): Administrative assistance (DTA Switzerland - Netherlands); in its ruling 2C_276/2016 of 12 September 2016, the Federal Court decided that administrative assistance must be provided on the basis of a group request from the Dutch authorities (cf. for a summary, also the contribution by Philipp Kruse on swissblawg); the legal basis for providing international administrative assistance in the case of group requests must result from the relevant agreement; the DTA Switzerland - Netherlands in conjunction with the understanding agreement on this agreement allows administrative assistance in principle in the case of group requests without identification of the persons concerned by indicating the names; it is undisputed that the present request is the same request that gave rise to the federal court proceedings; no material differences between the facts of the case and those considered by the Federal Supreme Court are apparent; the appeal is dismissed.
  • Judgment of 22 June 2017 (A-592/2016): Withholding tax 2005 - 2008 (levy); partial judgment and interim decision; subsequent payment of unpaid withholding tax amounts (incl. default interest) on payments of monetary value; limitation of the obligation to make subsequent payment of withholding tax; the Federal Administrative Court dealt with the question of the limitation of a possible obligation to make subsequent payment; in the absence of a criminal judgment (not yet issued), the limitation of a (possible) obligation to make subsequent payment is governed by Art. 12 VStrR (or Art. 14 VStrR) after the time of the commencement of the statute of limitations for criminal prosecution; if the objective facts of the tax evasion (or tax fraud) are fulfilled, there is a violation of the administrative legislation of the Confederation, for which a statute of limitations of seven years applies according to case law (see E. 4.3.3); in the present case, it was questionable when the seven-year limitation period began to run; the decisive point in time is the time of execution of the (possible) tortious act; the time of execution of the tortious act is the time of submission of the incorrect annual financial statement to the FTA (the seven-year limitation period begins on the following day); not decisive for the beginning of the period are the time of payment of the (possible) payments in kind and the time of maturity at which the withholding tax would have had to be settled without request; with regard to the limitation of the claims in question, the date on which the complainant's annual financial statements for 2005-2008 were submitted to the FTA must be taken into account; the complainant had submitted the annual financial statements in stages; in the absence of an actual or natural unity of action, the course of the limitation period in the present case was limited for each act or omission. December 2008 (submission of 2007 annual accounts) and on 12 March 2010 (submission of 2008 annual accounts); the tax claims were thus partially time-barred and the appeal was partially upheld and the contested appeal decision was partially reversed with regard to the tax claims which were already time-barred.
  • Judgment of 22 June 2017 (A-550/2016): Withholding tax 2005 - 2008 (levied); partial and interim judgement; subsequent payment of unpaid withholding tax amounts (incl. default interest) on payments of monetary value; limitation of the obligation to make subsequent payment of withholding tax; with regard to the considerations of the Federal Administrative Court, the judgement is similar to the preceding judgement of 22 June 2017 (A-592/2016), which is why reference can be made to the comments made there.
  • Judgment of 8 June 2017 (A-404/2017): Administrative assistance (DTA Switzerland - Netherlands); administrative assistance in the case of group requests without identification of the persons concerned by indicating the names; the decision has already been presented in our contribution of 25 June 2017 and has in the meantime been appealed against at the Federal Supreme Court
  • Judgment of 31 January 2017 (A-2122/2016): Withholding tax (reclaim); applications for reimbursement of dividends from Swiss limited companies in which a Dutch foundation held less than 25% of the shares (portfolio dividends); application for full reimbursement of 35% based on the prohibition of discrimination in accordance with Art. 10 para. 1 DBA CH-NL 1951; the decision has already been presented in our contribution of 26 March 2017 and has in the meantime been appealed to the Federal Supreme Court

Decisions are listed chronologically by publication date.

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