Overview of the tax law decisions of the Swiss Federal Administrative Court published in the week of 30 March - 5 April 2020.
- Judgment of 11 March 2020 (A-4610/2019): VAT (tax liability / input tax 1st quarter of 2015); In the present case, it was disputed and had to be examined whether, in the absence of subjective tax liability, the appellant was to be deleted from the register of persons liable for VAT with retroactive effect as of 1 February 2015 or whether and to what extent the appellant carried on an entrepreneurial activity within the meaning of Article 10 of the VAT Act which was sufficient to affirm its status as a taxable person. In summary, the Federal Administrative Court concludes that the complainant's aircraft in dispute was used for business purposes to a considerable extent in 2015, which means that the complainant fulfils the conditions for subjective tax liability and is not to be deleted from the register of persons liable for VAT with retroactive effect from 1 February 2015. Approval of the complaint.
- Judgment of 19 February 2020 (A-2273/2019): VAT; secession; subjective tax liability; joint and several liability (2011-2014); in 2012 the General Assembly of the X. AG decided to split off the part of the company into the newly formed A. with retroactive effect from 1 January 2012. The present proceedings concerned the question of whether services rendered in the second quarter of 2012 are to be regarded as having been rendered by the complainant or already by the A. In this respect, the Federal Administrative Court found that the external appearance suggested that the complainant had provided the services and should have paid VAT on the corresponding turnover. The appeal was dismissed. Decision appealed to the Federal Supreme Court.
- Judgment of 17 February 2020 (A-5578/2019): Radio and television reception fees The appellant fulfilled the conditions for radio and television reception fees for the years 2015 to 2017; a legal proposal against the prosecution must therefore be removed (but approval was given with regard to VAT above CHF 2.-). The legality of the reception fee will not be reviewed by the court on the basis of Art. 190 BV. Rejection of the appeal. Decision challenged in the Federal Supreme Court.
- Judgment of 28 October 2019 (A-355/2018): Value Added Tax (VAT); the Federal Supreme Court did not uphold the appeal in its judgment of 9 March 2020 (2C_1003/2019); see our contribution of 22 March 2020.
- Judgment of 22 March 2020 (A-4250/2019 and A-4251/2019): VAT; Deduction of input tax (2009 to 2013); The taxpayer operated several hotels in Switzerland during the relevant period based on a uniform club concept. Guests were offered all-inclusive arrangements in winter, which, in addition to accommodation and meals, also included ski instruction. It was controversial and had to be examined whether certain expense items were used for the ski instruction, which - in the absence of an objective option - was exempt from tax, which would result in a correction of the input tax deduction. The services in the account "Laundry, cleaning, building and furniture maintenance" do not show a sufficient connection with the ski instruction, likewise the ski passes for the guests booked in the expense account "Ski lift", were not exclusively given in connection with the ski school. On the other hand, the "Fahr-Liftkarten Veranstaltungen" account included ski passes for ski instructors, for which an input tax correction is appropriate. The "Maintenance contracts" account includes a small amount of maintenance expenditure in connection with ski instruction. In this context, the allocation of the individual services has not yet been made. Partial approval of the taxpayer's complaint and rejection of the case to the lower court for recalculation of the tax claims in accordance with the considerations.
- Judgment of 23 March 2020 (A-6102/2019): Radio and television reception fees; limited company under private law; power to issue an injunction Billag AG constitutes an administrative authority within the meaning of the VwVG, as it was assigned a public-law task by the Federal Government and therefore also the power to issue orders to levy reception fees. Furthermore, the order is also valid without a signature, as the relevant radio and television reception fee regulations expressly do not provide for the signing of an order. Rejection of the taxpayer's appeal.
Decisions of the Federal Administrative Court in the area of administrative assistance:
- Judgement of 3 March 2020 (A-1348/2019): Administrative assistance double taxation agreement Switzerland - USA (DTA CH-USA); the appeal is upheld in part; decision appealed to the Federal Supreme Court
Decisions are listed chronologically by publication date.
