Overview of the tax law decisions of the Swiss Federal Supreme Court published in the week from 20 to 26 March 2017.

  • Judgment of 7 March 2017 (2C_1079/2016): Import tax (taxable amount); question of the correct taxable amount of a supplier or importer of goods for a national company of an internationally operating group; applicable taxable amount of the import tax (input price of the importer or output price to the national company); the goods imported in fulfilment of a sales contract and made available in the domestic distribution warehouse open the facts of Art. 54 (1) lit. a MWSTG (E. 3.2.5); the basis of assessment is the fee, i.e. the importer's input price ("transaction value") (E. 3.3.1 and 3.3.2); accordingly, there is no violation of the administrative legislation, which is why there is no obligation to pay default interest (E. 3.4); the complaint was upheld and the ruling of the Federal Administrative Court of 25 October 2016 (A-2675/2016) was overturned.
  • Judgment of 6 March 2017 (2C_576/2016; 2C_577/2016); official publication provided Administrative fines; direct federal tax and cantonal and communal taxes 2013 (Vaud); the tax administration of Vaud will pay A. AG (with registered office in B., canton of Vaud) on the basis of a late tax return for the 2013 tax period ("l'amende d'ordre"); an appeal lodged by the public limited company against this decision was partially upheld by the cantonal court of Vaud, which reduced the amount of the fine for cantonal taxes to CHF 150 (the same amount of the fine as the fine for federal tax of CHF 150); The Federal Court upheld the appeal lodged by the Vaud Tax Administration; the reduction of the fine by the Vaud Cantonal Court in view of the 2013 cantonal taxes violates Art. 55 StHG and Art. 241 StG/VD (E. 3.4; cf. E. 3.1 and 3.2 on existing case law, which states that in the event of a breach of procedural obligations, the administrative fine imposed is qualified as a criminal sanction); the higher administrative fine for cantonal taxes - in comparison to the administrative fine for federal tax - is intended not least to provide an incentive to pay so that the taxpayer fulfils his procedural obligations (E. 3.4 and E. 3.3 with reference to the applicable principle of sentencing under Art. 47 of the Penal Code).
  • Judgment of 14 February 2017 (2C_800/2016, 2C_801/2016): Direct federal tax and cantonal and communal taxes for 2010, 2011 and 2012 (Valais); Costs associated with the conversion of a mountain hut; periodicity principle; assessment according to dutiful discretion; appeal dismissed.
  • Judgment of 7 March 2017 (2C_996/2015); official publication provided: Bank E., domiciled in the USA, offered the Pension Fund A.A. to invest in Common Trust Funds (CTF) established under US law. Bank E. then invested in the CTF as trustee. In a tax ruling of 2003 concerning the turnover tax, the FTA confirmed that the transactions to be realised contain a two-tier investment structure, so that no turnover tax is due on CTFs - despite their similarity to investment funds - as long as the pension fund funds do not act as professional securities dealers. In the course of a control of the management company of the pension fund's funds, the FTA established that the investments in the CTF were booked directly from the pension fund, whereupon the FTA revoked the ruling and ordered a turnover tax for the period from 2007 to 2010. In its decision of 29 September 2015, the Federal Administrative Court upheld an appeal against this decision because the pension fund does not own the trust assets or the CTF, which have not been transferred to it for consideration within the meaning of Art. 13 para. 1 StG. The Federal Supreme Court upheld the decision of the Federal Administrative Court and held that the pension fund ceded all the property of the funds to Bank E. and that therefore only Bank E. could act as trustee and securities dealer ("nemo plus juris transferre potest quam ipse habet" principle, E. 4.4). Furthermore, the Federal Supreme Court points out that a right of ownership may not be assumed lightly on the basis of the fact that an asset is capitalized in the balance sheet (E. 5.4) and rejects the FTA's appeal.

Decisions are listed chronologically by publication date.

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