Overview of the tax law decisions of the Swiss Federal Administrative Court published in the week of 18 - 24 September 2017.

  • Judgment of 7 September 2017 (A-2540/2017): Administrative assistance (DTA Switzerland - India); request for administrative assistance based on Art. 26 DTA Switzerland - India; assertion by the person concerned that the information on which the request for administrative assistance is based from the so-called HSBC list (stolen data of Hervé Falciani) had been used in an inadmissible manner; according to the Federal Supreme Court, the use of stolen bank data by a requesting state is not contrary to good faith within the meaning of international law (reference to BGE 143 II 224, or 2C_1000/2015, cf. our contribution of 5 May 2008). April 2017); no assurance by India within the framework of the agreement negotiations to waive the use of information obtained through criminal acts under Swiss law; distinction between administrative assistance upon request and spontaneous administrative assistance; according to the Federal Administrative Court, the latter is not available in the specific case; probable materiality: this is also the case if the person concerned has already paid the tax amount on which the request is based; obligation of the FTA to blacken information concerning persons who are not connected with the request for administrative assistance and who are not likely to be relevant for assessing the taxpayer's tax situation.
  • Judgment of 14 August 2017 (A-4453/2015): Administrative assistance (DTA Switzerland - Russia); request for administrative assistance based on Art. 25a DTA Switzerland - Russia; right to be heard (Art. 29 para. 2 BV); nullity of the final decision of the FTA if the FTA cannot prove that the person concerned has been informed of the administrative assistance proceedings concerning him; in accordance with Art. 14 para. 5 StAhiG, publication in the Federal Gazette is regarded as the final measure in the cascade of Art. 14 StAhiG; since Art. 14 StAhiG is addressed to the FTA, it is out of the question that the SNB should cure or make up for the lack of a legal hearing itself, which is why the matter is referred back to the FTA so that it can inform the company concerned of the administrative assistance procedure by means of a compliant notification.
  • Judgment of 14 September 2017 (A-6390/2016, A-6393/2016): VAT; discretionary assessment (tax periods 2009-2012); due to the cash transactions in your catering business, there is a legal obligation to keep at least a simple ordinary cash book; the making of discretionary assessments is permissible and was correctly carried out; the records on the cash register strip must be transferred promptly to a cash book; application of the apportionment procedure; the appeal is dismissed.
  • Judgment of 13 September 2017 (A-6516/2016): Value Added Tax (1st quarter 2006 to 4th quarter 2009); Subjective tax liability of a centre for the development of traditional Chinese medicine (TCM); in the present case no exempted service pursuant to Art. 18 No. 3 aMWSTG, as TCM practitioners are not health professionals within the meaning of the Vaudois health law and do not require a formal professional licence or authorisation; dismissal of the appeal.
  • Judgment of 13 September 2017 (A-389/2017): VAT (tax periods 2010 and 2011); subjective tax liability of a centre for the development of traditional Chinese medicine (TCM); in the present case, no exempt supply pursuant to Art. 21(2)(3) VAT Act, as TCM practitioners are not health professionals within the meaning of the Vaudois health legislation and do not require a formal professional licence or authorisation; dismissal of the appeal.
  • Judgment of 12 September 2017 (A-6503/2016): VAT (1st quarter 2010 to 4th quarter 2013); subjective tax liability of a centre for the development of traditional Chinese medicine (TCM); in the present case, no exempted service under Art. 21(2)(3) VAT Act, as TCM practitioners are not health professionals within the meaning of Vaudois health law and do not require a formal professional licence or authorisation; dismissal of the complaint.

Decisions are listed chronologically by publication date.

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