Decisions of the Swiss Federal Administrative Court (CW 23 - 2022)

Overview of the tax law decisions of the Swiss Federal Administrative Court published between 6 - 12 June 2022:

Judgment of 12 May 2022 (A-587/2021): Zoll (Nichteintreten); in summary, it must be stated that in the present case the appellant was not legally entitled to have the lower instance intervene in her submission of 10 December 2020. The lower instance correctly qualified the appeal filed with it as being out of time. The contested decision not to intervene must therefore be confirmed. Dismissal of the appellant's appeal insofar as it can be upheld.
Judgment of 24 August 2021 (A-584/2020): Customs; confiscation; decision confirmed by the Federal Supreme Court in its ruling of 11 May 2022 (2C_798/2021) (see our article of 5 June 2022).
Ruling of 6 August 2021 (A-5196/2020): Value added tax; entity of the enterprise / services exempt from tax (tax periods 2012 to 2015); ruling confirmed by the Federal Supreme Court in its ruling of 11 May 2022 (2C_727/2021) (cf. our article of 5 June 2022).
Judgment of 31 May 2022 (A-4155/2021): Value-added tax; pecuniary benefits to closely related persons; third party price (tax periods 2013 to 2017); Under value-added tax law, the complainant [X. AG] provided the married couple [A. and B.], i.e. persons closely related to it, with a service in the area of personnel leasing. The lower court estimated the remuneration for the personnel leasing by adding a 20% surcharge for employer contributions, infrastructure and profit to the wage attributable to the work with the couple [A. and B.]. However, the employer's contributions can be seen specifically from the complainant's accounts. It is not comprehensible to what extent a surcharge for infrastructure does justice to a dutiful discretionary assessment by the lower court, since the complainant does not provide any infrastructure for the work at the home of the couple [A. and B.]. A profit surcharge is not objectionable, although the lower court does not state how high it assessed this. A recalculation by the FAC is therefore not possible. Although it could itself make an assumption, the complainant would then be deprived of an instance. The case must therefore be referred back to the lower court for a recalculation of the value added tax with regard to the staff leasing. The lower court also succeeds in proving that the rent for a property agreed between the complainant and its sister company is not in line with the market. The specific method chosen by the lower instance to determine a rent in line with the third party price must be comprehensible. However, in view of the fact that the calculation cannot be understood in the present case, it cannot be assessed whether the estimate and the choice of method were made dutifully. Thus, the lower court's approach does not appear to be appropriate, at least with regard to the concrete calculation. The matter must therefore be referred back to the lower instance for recalculation and, if necessary, reassessment with regard to the determination of a rent in line with the third party price. The taxpayer's appeal is upheld insofar as the matter is referred back to the lower instance in accordance with the recitals.

Decisions in the area of administrative assistance.