Overview of the tax law decisions of the Swiss Federal Administrative Court published in the week of 31 May - 6 June 2021.

  • Judgment of 12 May 2021 (A-2703/2020): VAT (1st quarter 2005 to 4th quarter 2009); tax avoidance. In the present case, it was examined whether the FTA was correct in assuming partial tax avoidance by the complainant with regard to the use of an aircraft. The Federal Administrative Court concludes that the lower court was correct in assuming tax avoidance in the sense of a partial pass-through to the extent of the private use of the aircraft by the beneficial owner ("own use"). However, the appeal is partially upheld insofar as the input tax deduction adjustment is reduced in favour of the complainant due to (partial) changes in use and because the complainant - contrary to the lower court - did not provide any educational services that were exempt from tax and excluded the right to deduct input tax. The appeal is partially upheld, but dismissed in all other respects.
  • Judgment of 19 March 2021 (A-3365/2020): Subsequent claim for import tax and automobile tax; The complainant imported various vehicles according to the following pattern. In a first step, the vehicles were brought across the customs border and declared under the temporary admission procedure. At a later stage, they were declared for definitive importation or release for free circulation. The basis of assessment is the remuneration agreed between the complainant and its customers in Switzerland in accordance with the (already concluded) purchase contract. Dismissal of the appeal of the taxpayer (newly appealed to the Federal Supreme Court).
  • Ruling of 22 March 2021 (A-944/2020): Waiver of the issue tax. Also in the case of a company active in the insurance industry, the question of sufficient capitalisation prior to the reorganisation must be examined on the basis of KS ESTV No. 6 concerning hidden equity capital. Dismissal of the appeal of the taxpayer (new dismissal by BGer 2C_374/2021).
  • Ruling of 6 April 2021 (A-2668/2019): VAT; teak tree investment (2012-2016); The services (teak tree investments) provided by the complainant are deemed to be exempt services within the meaning of Art. 21 para. 2 no. 19 VAT Act and the corresponding input tax deduction (related to these services) is therefore excluded. Dismissal of the appeal (newly appealed to the Federal Supreme Court).
  • Ruling of 29 March 2021 (A-2727/2019): VAT (Q1/2011-Q4/2015); The burden of proof that the place of provision of services is abroad (namely in the case of offshore companies) lies with the taxpayer, including law firms subject to professional secrecy. The taxpayer law firm did not provide this evidence. Dismissal of the taxpayer's appeal (newly appealed to the Federal Supreme Court).
  • Judgment of 1 April 2021 (A-3330/2020): Appeal decision of 28 May 2020 (dismissal); dismissal of the taxpayer's appeal (newly appealed to the Federal Supreme Court).
  • Ruling of 7 September 2020 (A-6249/2018): VAT; tax periods 2011-2014; reduction of taxable consideration; for details see our article of 20 September 2020 (ruling overturned by Federal Supreme Court 2C_845/2020).

Decisions in the area of administrative assistance / non-admission:

Decisions are listed chronologically by publication date.

Tax topics covered in this post:
Treaties
International Tax
Value Added Tax (VAT)
Custom Duties
Other Taxes