Overview of the tax law decisions of the Swiss Federal Administrative Court published in the week from 24 to 30 April 2017.

  • Judgment of 7 April 2017 (A-2637/2016): Withholding tax (monetary value performance); the commission for the brokerage of a property was credited directly to the shareholder's current account and not recorded in the income statement; a direct credit to the shareholder's current account (i.e. the recording of the corresponding incoming payments without affecting income) constitutes a waiver of income in favour of the unitholder and thus a monetary value performance; the appeal is dismissed.
  • Judgment of 9 June 2015 (A-7091/2014): Administrative assistance (DTA Switzerland - France); principle of proportionality; the information provided within the framework of administrative assistance is only partially covered by the administrative assistance request in terms of time (years 2010 to 2013 instead of 2011 to 2012); the appeal is partially upheld.
  • Judgment of 11 April 2017 (A-1635/2015): Customs tariff; A. a company specialized in import, export, purchase, sale and distribution of surgical and medical products, filed a complaint with the Federal Administrative Court on March 12, 2015 after the Customs District Directorate of Geneva, in the course of an import control, classified the imported goods (surgical marking pens) with tariff number 9608.2000 according to the tariff number list of the Federal Customs Administration (p. 501, Chapter 96, with description of the goods: ballpoint pens; pens and marking pens), while A. had claimed the goods with tariff number 9018.9000 according to the tariff number list of the Federal Customs Administration (p. 479, Chapter 90, with description of the goods: instruments, apparatus and equipment for medical and surgical purposes). The Federal Administrative Court first addressed the applicable legal bases (including Switzerland's membership in the International Convention on the Harmonized Commodity Description and Coding System) and recalled that goods brought into or out of a customs territory are dutiable and assessed under the Customs Act and the Customs Tariff Act (E. 5.1 and 5.2). The Federal Administrative Court then shed light on the principles of interpretation with reference to "the general rules for the interpretation of the harmonized system (aVüAhS)" (E. 5.3; cf. the tariff number index to the electronic customs tariff, p. 12). The Swiss customs tariffs are linked to the nomenclature of the harmonization system (E. 5.4). In doing so, the Federal Administrative Court contrasted the tariffs at issue and stated that they could not undoubtedly be classified into one of the two categories. It finally dealt with the arguments of the complainant and the lower court (including the question of sterility of medical products as an aid to interpretation) and, in accordance with Rule 3 letter a of the aVüAhS, according to which the number with the more precise description of the goods takes precedence over the number with the more general description of the goods (E. 6.1.2 - E. 6.3.2), that the tariff assessment of the lower instance (9608.2000) is more specific than that of the complainant (E. 6.3.3). Furthermore, the lower court states that the customs authorities of Hanover (DE) have consistently qualified the import goods at issue as pens and markers (E. 6.4). On the other hand, the complainant's further argument that the imported goods are produced by a company specializing in the manufacture of medical products and that a tariff for medical apparatus must therefore apply is unhelpful (E. 7.2). The Federal Administrative Court dismisses the appeal.
  • Judgment of 4 April 2017 (A-2915/2016): Administrative assistance (DTA Switzerland - France); the principle of subsidiarity and the principle of good faith were not violated; complaint dismissed.

Decisions are listed chronologically by publication date.

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