Overview of the tax rulings of the Swiss Federal Administrative Court published in the week of December 11 - 17, 2017.

  • Judgment of 30 November 2017 (A-5295/2016): Administrative assistance (DTA Switzerland - USA); request for administrative assistance based on Art. 26 DTA Switzerland - USA. This provision does not presuppose the existence of fraud and the like, but it is sufficient to have a suspicion that such offences have been committed (cf. on the suspicion criteria BGE 139 II 404, which apply to banks that are qualified intermediaries). In the present case, the suspicion arises from the fact that an offshore company holds a bank account of which the complainant is suspected to be the beneficial owner. However, since the bank account is ultimately held by a discretionary trust (through the offshore company), the trust is not transparent. In these circumstances, the complainant succeeds in proving that he is not the beneficial owner and the request for administrative assistance must therefore be refused.
  • Judgment of 6 December 2017 (A-1123/2017): VOC; incentive tax on volatile organic compounds; a formally correct customs export declaration is a mandatory requirement for the exemption of exported VOCs within the meaning of Art. 35a para. 3 let. b USG; if code 21 (normal export procedure) instead of code 25 (refund/exemption of incentive tax on VOCs) is used in error, the tax may be demanded retroactively; dismissal of the appeal.
  • Judgment of 5 December 2017 (A-272/2017): Administrative assistance (DTA Switzerland - Sweden); information on the taxation of a Swiss branch is likely to be considerable, as the taxation of this interest income in Switzerland determines whether the Swedish company is entitled to the corresponding debt interest deduction in Sweden; information not requested (in this case a reference to foreign withholding taxes requested by the complainant) cannot be obtained and does not fall within the scope of spontaneous administrative assistance; individual parts of the tax return can be forwarded if these are likely to be considerable; dismissal of the complaint.
  • Judgment of 17 December 2015 (A-5361/2013): withholding tax; the complainant did not create a dividend subject to withholding tax through the short sale ("cum coupon"); it (merely) entered into the obligation to sell a share ("cum coupon") and therefore only carried out "short" transactions on the dividend due date; the payment by the complainant to the share purchasers in the amount of the respective net dividends is therefore neither a taxable event within the meaning of Art. 4 para. 1 let. b VStG withholding taxable service, nor is a tax, a "tax rate" or a "tax liability" under customary law or criminal tax law The amount transferred to the FTA by the party to the proceedings is therefore not withholding tax; the FTA therefore has no legal possibility to levy withholding tax or other levies in the case of short sales over the dividend record date by means of a sovereign order; decision confirmed by the Federal Supreme Court in its ruling of 21 November 2017 (2C_123/2016); cf. our contribution of 17 December 2017.

Decisions are listed chronologically by publication date.

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