Overview of the tax law decisions of the Swiss Federal Administrative Court published between 11 - 17 March 2024:
- Judgment of 26 February 2024 (A-4565/2021): importation of works of art and exhibits for museums; For each work of art, a single application is required, which must be submitted prior to importation. By means of "ruling", the individual future import of a work of art is by no means confirmed pro futuro across the board. Whether or not the parties have agreed on a two-stage procedure is irrelevant. Accordingly, in view of the principle of legality prevailing in tax law, the only decisive factor in the present case is that the customs conditions for the duty-free import of works of art are met at the time of importation. In the present case, it is up to the complainants to prove that their "museum" or private building, as understood in this way, is a tax-exempt circumstance. In the present case, the granting of museum status fails due to the lack of public accessibility. Dismissal of the taxpayer's complaint.
Updates / Republications:
- Judgment of 28 February 2023 (A-4703/2020): Import duties; post-clearance recovery; The Swiss importer is liable for customs duties and is jointly and severally liable for the import duties if the exporter has exported the goods in violation of customs regulations. Joint and several liability is only waived if the Swiss importer can prove that the customs declarations corresponded to the type and quantity of the imported goods and that the customs regulations were complied with. By accepting imported goods and goods that have not been cleared through customs, the Swiss importer has conferred an unlawful advantage on an objective infringement of administrative legislation, since the duties were not included in the purchase price of the goods. The appeal is dismissed to the lower court for assessment of the applicable duty rates and is thus partially upheld and dismissed as to the remainder. Decision confirmed by BGer.
- Judgment of 28 February 2023 (A-4700/2020): Import duties; post-clearance recovery; The Swiss importer is liable for customs duties and is jointly and severally liable for the import duties if the exporter has exported the goods in violation of customs regulations. Joint and several liability is only waived if the Swiss importer can prove that the customs declarations corresponded to the type and quantity of the imported goods and that the customs regulations were complied with. By accepting imported goods and goods that have not been cleared through customs, the Swiss importer has conferred an unlawful advantage on an objective infringement of administrative legislation, since the duties were not included in the purchase price of the goods. The appeal is dismissed to the lower court for assessment of the applicable duty rates and is thus partially upheld and dismissed as to the remainder. Decision confirmed by BGer.
- Judgment of 19 January 2023 (A-4666/2020): Import duties; post-clearance recovery; the complainant was rightly recorded as jointly and severally liable for the reduced import duties. However, the products at issue in the present case, which originate in free zones but do not meet the conditions for exemption from customs duties and whose importation takes place at a time when Switzerland is fully supplied with fresh vegetables, are subject to the reduced extra-quota duty rates. Partial approval of the appeal and rejection to the lower court. Challenged by the Federal Court of Justice.
- Judgment of 1 February 2024 (A-5711/2022): VAT; non-business sector; Determination of input tax liability 2013-2018; In the present decision, the FAC examines whether the complainant has a non-entrepreneurial area in addition to the entrepreneurial one. Furthermore, it is disputed in the present case whether the press subsidy contribution is a subsidy or a price reduction or reduction in remuneration (according to the complainant). In the present case, the complainant provides the services in the non-profit sector without consideration. There is, therefore, no remuneration which could be compared with the services provided by the complainant. It is therefore a non-entrepreneurial area. According to the judges, the two areas also have a certain independence. As a result, the input VAT claimed by the complainant must be corrected insofar as it is used for goods or services outside its business activities. In addition, the court addresses whether the press subsidy contribution is a subsidy or not. After interpreting the relevant provisions, the court concludes that the contributions to the press subsidy received by the complainant constitute a subsidy, which leads to a reduction in the deduction of input tax. However, since the VAT claim for the year 2013 is time-barred, the complaint concerning the tax year 2013 is upheld, but dismissed as to the remainder. Challenged by the Federal Court of Justice.
- Judgment of 9 February 2024 (A-2765/2022): VAT (2016 - 2020); reduction of input tax deduction; Subsidy; Donation; If there are far-reaching contractual obligations in connection with the subsidies received, a subsidy is to be assumed. Dismissal of the taxpayer's complaint. Challenged by the Federal Court of Justice.
Administrative assistance (incl. updates / republications):
Decisions are listed chronologically by publication date.
