Overview of the tax law decisions of the Swiss Federal Administrative Court published in the week of 19 - 25 March 2018.

  • Extract from the judgment of 11 October 2017 (A-4277/2017; BVGE 2017 III/1): Administrative assistance (DTA Switzerland - Norway); right of appeal of a third legal entity deleted from the Commercial Register in the course of the proceedings before the court of first instance; since the Swiss joint-stock company in question was already deleted from the Commercial Register in the course of the proceedings before the court of first instance, it was no longer able to act when the appeal was filed and was therefore no longer able to be a party to the proceedings or a party to the proceedings; it could therefore be deleted from the Commercial Register from the time of deletion - and incidentally also before that in the liquidation stage (cf. E. 1.2.4) - not (no longer) be a party to the proceedings at first instance; cf. also our contribution of 22 October 2017 on the judgment of 11 October 2017 (A-4277/2017).
  • Judgment of 5 March 2018 (A-5193/2016): Tobacco tax; import of water pipe tobacco; fine-cut tobacco and water pipe tobacco are different products; in this case Art. 11 ab. 1 TStG in connection with Annex IV to the TStG is applied; the tobacco tax is therefore 12% of the retail selling price; the contested decision is annulled and the case is referred back to the lower court for reconsideration within the meaning of the recitals.
  • Judgment of 31 January 2018 (A-457/2017): Withholding tax; reclaiming the withholding tax in accordance with the DTA Switzerland - France; rejection of the application for a refund of Swiss withholding tax (Form 83) by the Federal Tax Administration (FTA) because the claim for refund is forfeited; the application for refund must be submitted to the FTA within three years of the end of the calendar year in which the taxable benefit became due (forfeiture period) although the Federal Administrative Court recognises that it is unsatisfactory if - as in the present case - the complainant is unable to submit a fully completed form within the deadline because a tax procedure is pending in France, the Federal Administrative Court states that this disadvantage is not exceptional and that the Contracting States were free to provide for a different arrangement in the DTA in question; when the application for refund of the withholding tax was filed, the three-year period for asserting the claim had already expired; consequently, the lower court had rightly refused the refund, but the application would not have had to be dismissed; rather, the lower court should not have acted upon it; the contested decision should therefore be annulled on formal grounds and the appellant's request for restitutio in integrum should not be upheld; although the appeal was therefore upheld on procedural grounds, the taxpayer's request for restitutio in integrum was not upheld in substance; decision contested before the Federal Supreme Court
  • Judgment of 27 February 2018 (A-2244/2017): Customs; import assessment of honey; failure to comply with the time limit for presentation; there are no apparent reasons to justify failure to comply with the time limit for presentation; the appeal is dismissed
  • Judgment of 7 March 2018 (A-5817/2017): Customs; release of seized assets; the appeal is not upheld and the matter is forwarded to the lower instance in the sense of the considerations (in the sense of the acceleration order) in order to assess whether the appellant's submission is to be accepted as an objection.

Decisions of the Federal Administrative Court in the area of administrative assistance:

Decisions are listed chronologically by publication date.

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