Overview of the tax law decisions of the Swiss Federal Administrative Court published between 20 - 26 June 2022:
- Judgment of 12 April 2022 (A-4452/2021, A-4454/2021): VAT (1st - 4th quarter 2016). In summary, the taxpayer complained that in view of the de facto absence of inflation for ten years, a default interest rate of 4% no longer compensated for an interest disadvantage suffered by the creditor as a result of the debtor's default; According to the ruling, there is a legal basis for charging default interest; The default interest rate of 4% is "customary in the market" and appears to be lawful, also in consideration of the legislator's leeway; The default interest rate is neither a penalty under criminal law, nor does the statement that default interest is owed express an accusation relevant under criminal law; Dismissal of the taxpayer's appeal; Decision newly appealed to the Federal Supreme Court.
- Judgment of 27 September 2021 (A-2953/2020): Value added tax (2012-2016); Decision of 12 March 2020; In the present proceedings, it was disputed whether the retroactive correction of the VAT levied by the complainant on the rent for the buildings was lawful or whether the disputed invoicing of the rent with VAT was equivalent to an opting in for VAT, whereby a subsequent correction is no longer possible after the expiry of the relevant deadlines. The Federal Administrative Court concludes that the requirements for an appeal are not met in casu. Dismissal of the appeal; the Federal Supreme Court did not hear the appeal.
- Ruling of 1 June 2022 (A-5290/2020): Place of assessment (Art. 108 DBG); The dispute was whether the taxpayer had actually moved his tax residence from GE to SZ in 2009 (during the cohabitation and before the marriage). The same question arose with regard to the wife after the marriage in 2011. In principle, a taxpayer is entitled to challenge a decision of the FTA regarding the place of assessment made pursuant to Art. 108 of the Federal Tax Act, in particular also against the background of the principle of the unity of the place of assessment and thus the precedent effect also for cantonal and communal taxes. On the other hand, the plea of forfeiture of the right of taxation can only be raised by a canton. The FTA was correct in assuming that the circumstantial evidence presented by the canton of Geneva was not sufficient to prove that its taxation claim for 2010 had been asserted in due time. Although the taxpayer was no longer employed at his employer's Geneva headquarters but at their Zurich branch (whereas he continued to be registered only in the Geneva commercial register), resided in SZ towards the end of 2009 and also rented two flats there at a rent of CHF 7,600, he does not succeed in proving the transfer of residence from Geneva to Schwyz. The taxpayer's connections for 2011 were also stronger to GE than to SZ. It is undisputed, as the FTA also notes, that the taxpayers already had ties to SZ, in particular flats and certain social activities, and that they even maintained friendly relations with certain persons there. In the present case, however, the ties to GE are stronger and recognisable to third parties in view of the wedding in GE, the taxpayer's (wife's) previous residence in GE, the taxpayer's son's schooling, the weekends and holidays spent in GE and the taxpayer's professional life, which partly takes place abroad. Although the taxpayers have finally settled in SZ since the 2012 tax period, the above elements are such that the centre of their vital interests was in GE in the disputed tax years 2009 and 2011. Dismissal of the appeal of the Canton of Geneva with respect to 2010; dismissal of the appeal of the taxpayers with respect to 2009 and 2011.
- Judgment of 31 May 2022 (A-4078/2021): VAT (tax periods 2012-2016); rental of real estate, accommodation supply, supply to closely connected persons; X. Sàrl (complainant) provided a chalet to Z. Ltd. with registered office in the UK against payment and with open display of VAT. The FTA assessed the supply relationship between X. Sàrl and Z. Ltd. as an exempt but opted-in rental pursuant to Art. 21 para. 2 item 21 VAT Act and not as an accommodation service. Furthermore, the chalet was repeatedly made available to the former managing director of X. Sàrl on several occasions. With regard to the estimate of the third-party price, the complainant has provided the necessary evidence that the estimate of the third-party price for the summer and autumn weeks was incorrect because it assumed the presence of staff. The case must therefore be sent back to the lower court for a new, dutiful estimate of the third-party price for the summer and autumn weeks. Partial approval of the complaint by X. Sàrl.
Decisions in the field of administrative assistance:
Decisions are listed chronologically by publication date.
