Decisions of the Swiss Federal Administrative Court (CW 2 - 2023)

Overview of tax law decisions of the Swiss Federal Administrative Court published between January 9 - 15, 2023:

Judgment of 21 December 2022 (A-6217/2020): Duty demand pork; In the period from 2015 to 2016, A-GmbH imported 31 consignments of "pork belly meat, frozen" from Portugal into Switzerland. According to the commercial invoices from Portugal attached to the import customs declarations, this was a product with the designation "Tiras de entrecosto c/Etiqueta (...)" or (from January 2016) "Tiras de entrecosto c/Etiqueta (...)- Congelado". The tariff number or the customs duty rate (carrés and parts thereof or other) was in dispute and consequently it had to be clarified whether the disputed goods were ribs from the back or the "carré" of the pig or ribs from the belly or breast area of the pig. Based solely on the tariff opinion - which relates to the trigger shipment not in dispute - it cannot be established with sufficient certainty that all of the disputed imports are in fact ribs from the back of the pig. For full (strict) proof, such a high degree of probability is required that the possibility of the contrary can no longer reasonably be expected, which is not the case here. In particular, in view of the contradictory findings and the different descriptions in the customs findings, it cannot be excluded with sufficient certainty that the imports in question differ in their nature despite uniform descriptions, prices and supply chains. Approval of the complaint of the duty payers.
Ruling of December 21, 2022 (A-21/2021): Withholding tax (collection): The complainant's complaints, in particular that the cantonal tax administration was not at all entitled to inform the FTA of her self-disclosure, are unfounded (cf. Art. 36 para. 1 VStG); dismissal of the taxpayer's appeal.
Judgment of December 6, 2022 (A-2204/2021): Customs duties and VAT; dismissal of the appeal of the taxpayers.
Judgment of 16 December 2022 (A-5458/2021): VAT 2011-2016 (subsidy, exchange of services); In the present case, it was disputed whether the complainant had to pay tax on its activities in connection with the PISA project or on the financial resources received in this context. Although the legal basis speaks of "contributions" or "promotion and support", de facto, the Confederation or the EDK commissioned the simple society (PISA 2009) or Institute B and Institute C (PISA 2012 and 2015) with the implementation of the PISA studies and financed them 100%. Due to the contract and the international requirements, it is precisely defined how they have to conduct the studies, which clearly speaks against the existence of a subsidy; In connection with PISA 2009, the complainant provides its services to the einfache Gesellschaft, which in turn provides services to the Confederation and the EDK. Thus, the complainant's services are provided within the framework of cooperation and to an educational and research institution, which means that they are exempt from tax. Approval of the complaint of the taxpayer.

Decisions in the field of administrative assistance: