Overview of tax law decisions of the Swiss Federal Administrative Court published between March 6 - 12, 2023:
- Judgment of 14 February 2023 (A-1307/2022): VAT; VAT-liable service provider, attribution of turnover of a sole proprietorship of the managing partner of a GmbH to the GmbH of the partner that is subject to VAT; Turnover of a partner of a GmbH that is active as a sole proprietor in the same area as the controlled GmbH and invoices as a private person is to be attributed to the GmbH if the sole proprietorship does not have an external presence. If only the invoices are in the name of the shareholder as a private individual, but the sole proprietorship has neither an entry in the commercial register nor an online presence, nor premises and telephone connections separate from the GmbH, the sole proprietorship does not have an external presence. Accordingly, the turnover of the sole proprietorship is to be attributed to the GmbH on the basis of Art. 10 para. 1 VAT Act or Art. 20 para. 1 VAT Act. The same result is reached from the point of view of tax avoidance: If the sole proprietorship and the GmbH share the same premises and telephone connections and both offer the same services (partly the same customers), an unusual arrangement is to be assumed. Setting up a sole proprietorship alongside the GmbH under these circumstances is clearly unusual and can only be explained by splitting the turnover in order to save taxes if necessary. Allowing such structuring would result in a considerable tax saving. Consequently, there is tax avoidance, and the sales of the two entities would have to be combined for this reason as well.
Updates/Republications:
- Judgment of 20 January 2023 (A-4757/2020): Temporary admission procedure (cf. our article of February 5, 2032); decision appealed to the Federal Supreme Court.
- Judgment of 19 January 2023 (A-6034/2020): Procedure for temporary import and export; subsequent collection of import duties (see our article of 5 February 2023); decision appealed to the Federal Supreme Court.
- Judgment of December 15, 2022 (A-3116/2022): Unternehmensabgabe Radio und Fernsehen (2022) (see our article of January 22, 2023); the Federal Supreme Court did not hear the appeal in its ruling of February 27, 2023 (9C_138/2023).
- Judgment of 27 April 2022 (A-3346/2020): AlkG; distillery license; spirits tax (see our article of June 19, 2022); decision confirmed by BGer with judgment of February 6, 2023 (9C_622/2022) (see our article of March 5, 2023).
Decisions in the area of administrative assistance (incl. updates/re-publication):
Decisions are listed chronologically by publication date.
