Overview of the tax law decisions of the Swiss Federal Supreme Court published between 13 - 19 June 2022:
- Judgment of 12 May 2022 (2C_853/2021): VAT 2012-2016; In the present case, the MWSTG 2009 and the MWSTV 2009 are applicable. The dispute is whether the complainant is allowed to make a correction to the value added tax that it has shown on the invoices for the rental of the buildings. The transfer of real estate to third parties for use or enjoyment is exempt from tax under Article 21(2)(21) of the VAT Act, unless the taxable person has opted out under Article 22 of the VAT Act. The complainant claims that he did not opt to charge VAT. In doing so, he fails to recognise the central role of the invoice. The correction of the invoice according to Art. 27 para. 2 VAT Act 2009 is only possible if the tax is stated in an invoice without being entitled to do so or if an excessively high tax rate or tax amount has to be stated. Since the complainant clearly stated the VAT on the invoices in question for the rental of real estate, he properly made use of the taxation option under Art. 22 VAT Act. What is in dispute is whether the complainant could retroactively waive the option to tax the rents under Art. 22 VAT Act. The federal legislator expressly excluded the right to retroactively opt for taxation. After expiry of the finalisation period, it is no longer possible to exercise or waive the option. In the present case, the complainant only informed his tenants in 2016 that he was waiving taxation of the rental services and reimbursed them the invoiced VAT amounts. It follows that only the corrections for 2016 can be taken into account. Dismissal of the taxpayer's appeal.
- Ruling of 18 May 2022 (2C_291/2022): State and municipal taxes (Schwyz) and direct federal tax 2017; The assessment authority reclassified tax-free inheritance from abroad into taxable income due to the lack of cooperation of the taxpayers regarding further evidence. Five months after the assessment, the couple lodged an objection and requested reinstatement due to two stays abroad and illness. The spouses themselves were responsible for the fact that they failed to lodge an objection in due time without excuse. There is no ground for nullity in the present case. Dismissal of the taxpayers' appeal.
- Judgment of 31 May 2022 (2C_183/2022): Cantonal and communal tax (Vaud) and direct federal tax (without evasion) 2015 and 2016: late appeal, as the taxpayers still had 10 days after their return from abroad to organise themselves with regard to legal remedies within the ordinary contestation period; ground for restoration of time limit rightly denied; dismissal of the taxpayers' appeal.
- Judgment of 19 May 2022 (2C_481/2021) - intended for publication: Administrative assistance DTA CH-PE; A SRL (Peru) had sold 200,000 tonnes of copper to BB SA (formerly AB SA; CH). BB SA had then concluded a contract with C Ltd. concerning the smelting of the copper originating from it. These processing costs were one of several deductions from the purchase price agreed between A SRL and BB SA (the latter was primarily based on the market price according to the London Metal Exchange). The Peruvian tax authorities examined the transaction between A SRL and BB SA for its arm's length conformity and therefore requested the FTA, among other things, to hand over the contract between BB SA and C Ltd. and related documents; in addition, they requested in particular the purchase contracts, invoices, receipts, etc. of BB SA with its customers concerning the finished copper products. The Federal Supreme Court upheld the decision of the lower court, according to which the requested information was likely to be relevant for the transfer pricing review. The Federal Supreme Court then rejected the objection that these were trade secrets that could not be exchanged. The concept of a trade secret was to be interpreted contractually autonomously and restrictively. The restriction serves to prevent misuse of the information, e.g. in the sense of industrial espionage. In doing so, the Federal Supreme Court also suggests that the business secrets exception in the administrative assistance provision allows a contracting state a certain degree of discretion to refuse to exchange information in certain cases, but that this may not be mandatory. Thus, domestic law (StAhiG) does not provide for a corresponding restriction. However, the Federal Supreme Court left open the question of how this applies. It came to the conclusion that the information in question was not a trade secret anyway. In addition, the principle of trust under international law took precedence with regard to the misuse of information without concrete indications. The mere fact that the Peruvian state was also active in the mining and copper business was not sufficient to cast doubt on the requesting authority's failure to comply with its confidentiality obligation. Dismissal of the complaint of A SRL and BB SA.
Non-entry decisions:
Decisions are listed chronologically by publication date.
