Overview of the tax law decisions of the Swiss Federal Administrative Court published in the week of 24 - 30 July 2017.
- Judgment of 5 July 2017 (A-2326/2017): Administrative assistance (DTA Switzerland - France); decision on costs (Decision Decision Disposal 1); to the extent that the Federal Supreme Court has not yet ruled on case A-6854/2014, the withdrawal of the present appeal is reserved and the proceedings are written off as irrelevant.
- Judgment of 29 June 2017 (A-6733/2015): Administrative assistance (DTA Switzerland - Spain); request for administrative assistance from the Spanish tax authorities; in its final decision of 16 September 2015, the FTA (respondent) intended to forward the requested information on A. (complainant) to the Spanish tax authorities; the complainant subsequently lodged a complaint with the Spanish tax authorities on 16 September 2015. October 2015 Complaint; examination of probable relevance in accordance with the DTA Switzerland - Spain; prohibition of "fishing expedition", examination of the principle of good faith and the principle of subsidiarity; the conditions are met with which the bank details may be transferred (E. 5.6); dismissal of the complaint.
- Judgment of 5 July 2017 (A-3421/2016): Administrative assistance (DTA Switzerland - France); two requests for administrative assistance were made by the French tax authorities against A (complainant); in a final decision dated 26 April 2016, the FTA (respondent) authorised the provision of the requested information and ordered companies C. and D. to designate a Swiss representation for further information (by means of publication in the Federal Gazette); the complainant lodged an appeal against the intended transmission on 27 May 2016; infringement of the right to be heard against companies C. and D. affirmed (incorrect judicial service); partial nullity of the conclusive ruling established (E. 5.3.1): dismissal to the lower instance; decision challenged before the Federal Supreme Court.
- Judgment of 6 July 2017 (A-1674/2016): Administrative assistance (DTA Switzerland - Netherlands); in BGE 143 II 136 (ruling of 12 September 2016, 2C_276/2016), the Federal Supreme Court established that group requests based on the DTA Switzerland - Netherlands are admissible; no material differences between the present case and the case assessed by the Federal Supreme Court at the time are apparent; the appeal is dismissed; decision appealed to the Federal Supreme Court.
- Judgment of 5 July 2017 (A-171/2017, A-172/2017, A-173/2017): Administrative assistance (DTA Switzerland - Russia); the information to be transmitted with regard to the original request for administrative assistance is regarded as "probably significant" within the meaning of Art. 25a para. 1 Sentence 1 DTA Switzerland - Russia; no inadmissible "fishing expedition"; with regard to the second request (supplementary request) from the Russian authority, the "probable relevance" of the information is not given; partial approval of the appeal on the grounds of the lack of probable relevance under agreement law of the information requested in the second request; the administrative assistance envisaged by the lower instance (FTA) is inadmissible in so far as it relates to information and documents whose transmission was requested in the second request; decision contested before the Federal Supreme Court.
- Judgment of 5 July 2017 (A-778/2017): Administrative assistance (DTA Switzerland - India); taking into account the case law of the Federal Supreme Court (ruling 2C_1000/2015 of 17 March 2017; cf. our contribution of 5 March 2017) In the case of the Federal Administrative Court (Federal Supreme Court, April 2017), the Federal Administrative Court concludes that in the present case, the acquisition and use of stolen data for the purpose of submitting a request does not constitute a violation of the principle of good faith under international public law that excludes administrative assistance, since, in the constellation to be assessed here, the requesting State does not, without a doubt, obtain the data, if at all causally connected with the request - should this be the data stolen by Falciani (data theft from the bank HSBC) in a manner punishable under Swiss law - directly from the "data thief", but by legal means or assistance from a third country (France) (E. 6.2.); no breach of the principle of good faith under public international law by the requesting State (India) by ignoring an assurance given by it, in particular that the information on which the request is based has not been obtained by means of offences punishable under Swiss law (E. 6.2. 6.3.4.); the main request as well as the complainant's contingent requests concerning the retroactive effect under DTA law and compliance with the principle of speciality cannot be accepted by the Federal Administrative Court; the FTA's final ruling is confirmed and the appeal dismissed; decision appealed to the Federal Supreme Court.
- 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 providing the names; the decision was already described in our contribution of 25 June 2017; the Federal Supreme Court did not respond to the appeal in its ruling of 13 July 2017 (2C_573/2017), as there was no legal question of fundamental importance (cf. our contribution of 23 July 2017).
Decisions are listed chronologically by publication date.
