Overview of tax law decisions of the Swiss Federal Administrative Court published between April 3 - 16, 2023:

  • Judgment of 27 March 2023 (A-360/2022): Direct federal tax 2015; determination of the place of assessment and forfeiture of the right to appeal in the case of direct federal tax; A AG moved its registered office from Canton ZH to Canton ZG in 2015, whereby the Federal Supreme Court ruled in a previous dispute that the place of actual administration of A AG in the tax period in question was in Canton ZH and that, due to its disloyal conduct in the assessment proceedings in Canton ZG, it had exercised its right to appeal in Canton ZG. ZH and the latter had forfeited its right of appeal to assert intercantonal double taxation with respect to cantonal and communal taxes due to its unfaithful conduct in the assessment proceedings in the Canton of ZG (see our article of 10 May 2020); after the said judgment, the FTA determined by means of an order that the Canton of ZH was also responsible for the assessment proceedings in the Canton of ZG. ZH was also responsible for the assessment of the DBSt and that A AG had also forfeited its right to challenge the assessment ruling of the Canton ZG regarding DBSt; A AG is filing a preliminary appeal against the aforementioned ruling of the FTA; according to the Federal Supreme Court (BVGer), the right to challenge the assessment ruling of the Canton ZG regarding DBSt has been forfeited. BVGer, the case law of the Federal Supreme Court on the forfeiture of the right of appeal due to breach of trust in the cantonal assessment procedure is not applicable to the DBSt; in the case of the DBSt, only the tax sovereignty of the Confederation is affected, which means that the double levy would be an unconstitutional overstepping of the tax levying competence of the Confederation; this is not justifiable in the present case; the appeal of A AG is upheld.
  • Judgment of 27 March 2023 (A-4410/2021): VAT; tax avoidance/mixed use (tax periods 2012 to 2016); In the present case, it is disputed whether the complainant has to correct the input tax deduction as a result of partial tax avoidance with regard to the helicopter it has held since 2015. The original activity of the Complainant consisted of renting out aircraft to airlines. By mid-2015, the previously leased aircraft were sold. In the 2015 tax period, the complainant claimed the input tax incurred with the purchase of a helicopter against the FTA. After a detailed examination of the facts, the Federal Administrative Court holds that a (partial) tax avoidance is not per se excluded in case of a business or entrepreneurial use of more than 50%. In the present case, the use of the aircraft for business purposes only minimally outweighs the private use. Apart from isolated flights, however, the helicopter had been permanently available for the complainant at the airport and had thus primarily served private interests for the tax periods 2015 and 2016 to be assessed. Accordingly, according to the Federal Administrative Court, an input tax adjustment had to be made. As far as the amount of the input tax correction is concerned, it was rightly recognized only on a pro rata basis. The appeal is only upheld to the extent of the tax claim relating to the 2012 tax period. In all other respects, the appeal is dismissed.
  • Judgment of March 29, 2023 (A-3491/2022): Mineral oil tax; tax relief for biofuel. Denial of justice and unjustified legal delay; The assessment of the reasonableness of the duration of the proceedings is based on objective criteria such as the complexity of the case, the duration of the investigation, and the significance of the proceedings on the parties to the proceedings. Dismissal of the appeal due to lack of object.

Decisions in the area of administrative assistance (incl. updates/re-publication):

Decisions are listed chronologically by publication date.