Overview of the tax law decisions of the Swiss Federal Administrative Court published in the week of 20 - 26 November 2017.
- Judgment of 8 November 2017 (A-5410/2016): VAT; discretionary assessment; requirements for a discretionary assessment were fulfilled in the case at hand; discretionary assessment was carried out by the FTA in accordance with its duties by correctly determining the taxable turnover from the massages offered in the sauna club; an absolute limitation period of 15 years applies to tax claims which arose within the temporal scope of the FTA, which is why the FTA's tax claim relating to the year 2001 has become absolutely statute-barred in the meantime; approval of the complaint with regard to the back tax claim relating to the year 2001
- Judgment of 7 November 2017 (A-1357/2016): Customs; regular imports of goods by the operator of a restaurant without a customs or import tax declaration; estimation of the tax base according to dutiful discretion based on Art. 54 para. 4 VAT Act and Art. 12 VStrR.
- Judgment of 27 June 2016 (A-4143/2015): Administrative assistance DTA Switzerland-Norway; decision confirmed by the Federal Supreme Court in its ruling of 1 September 2017 (2C_643/2016); the decision of the Federal Supreme Court is scheduled for publication; cf. our contribution of 26 November 2017
- Judgment of 20 January 2016 (A-5099/2015): VAT; input tax deduction; decision confirmed by the Federal Supreme Court in its ruling of 27 October 2017 (2C_166/2016); cf. our contribution of 19 November 2017.
- Judgment of 14 November 2017 (A-8035/2015): Withholding tax; the AGM of A. AG had decided on a dividend and submitted a corresponding withholding tax declaration. At a subsequent extraordinary general meeting, the dividend resolution and the related annual financial statements were revoked because serious deficiencies were found in the bookkeeping. It was disputed whether the withholding tax claim had arisen at all (and whether the subsequent revocation had resulted in a subsidy subject to the issue tax). According to case law, the withholding tax claim does not arise if (i) the legal act which in principle triggers the withholding tax is null and void or contestable, (ii) the legal act is retroactively repealed, and (iii) the parties involved acted in good faith. As there was no indication of bad faith in this case, the matter was referred back to the FTA to determine whether the original decision of the General Assembly was null and void within the meaning of Art. 706b para. 3 CO.
- Judgment of 14 November 2017 (A-4464/2017)Since the company was already in the liquidation stage in the proceedings before the court of first instance, it was not (no longer) a party to the proceedings; since the question of the exchange of information in this case has no connection with the liquidation under company law, the liquidator was not able to legally represent the company in liquidation in the proceedings before the court of first instance and cannot do so in the appeal proceedings either.
- Judgment of 14 November 2017 (A-907/2017): Administrative assistance DTA Switzerland - Great Britain; request for administrative assistance based on Art. 25 DTA Switzerland - Great Britain; formal and substantive examination of the request. On the formal examination: no fishing expedition is present (this is a formal and not a substantive criterion, i.e. it is not the quantity of information that is limited by the prohibition on fishing expeditions, but rather the way in which the request is formulated that is important). On the substantive test: it is not up to the requested State to check whether the taxpayer is established in the requesting State. It is sufficient for the requesting State to refer to any economic link. Moreover, based on the principle of good faith, the requested State may assume that the principle of subsidiarity has been complied with, i.e. that the requesting State has in fact exhausted all legal remedies under domestic law, as long as there is no evidence to the contrary.
Decisions are listed chronologically by publication date.
