Decisions of the Swiss Federal Administrative Court (CW 26 - 2022)

Overview of the tax law decisions of the Swiss Federal Administrative Court published between 27 June - 3 July 2022:

Judgment of 22 April 2022 (A-2059/2021): Customs; value added tax (import tax) (see our article of 19 June 2022); the Federal Supreme Court did not hear the appeal in its ruling of 31 May 2022 (2C_395/2022).
Judgment of 16 May 2022 (A-231/2020): Tobacco tax for water pipes (see our article of 5 June 2022); newly appealed to the Federal Supreme Court.
Judgment of 16 May 2022 (A-5106/2020): Tobacco tax for water pipes (see our article of 5 June 2022); newly appealed to the Federal Supreme Court.
Rulings of 8 June 2022(A-2592/2019 and A-2591/2019): Withholding tax (pecuniary benefits/solidary liability); in the absence of proper accounting, the taxpayer or the jointly liable party has the burden of proof for all aspects of the existence of performance and consideration without facilitating presumptions. The monetary benefits assumed in the context of the various factual complexes are confirmed. The fact that the company is supposed to be resident in Russia within the meaning of the DTA CH-RU has no influence on the withholding tax. The numerous procedural objections, namely with regard to the interactions between administrative penalty and tax collection proceedings, are also all rejected. The amounts of joint and several liability pursuant to Art. 12 para. 2 and Art. 12 para. 3 of the withholding tax regulations are confirmed. The appeal is only upheld with regard to the start of the interest accrual for a sub-item, but is otherwise dismissed in its entirety.
Ruling of 3 November 2021 (A-1558/2020): VAT 2011-2014; discretionary assessment (see our article of 5 December 2021); decision partially confirmed by BGer with judgement of 12 May 2022 (2C_998/2021), see our article of 26 June 2022.
Ruling of 23 June 2022 (A-5317/2020): VAT; Services to closely related persons (2011-2014); In the context of a VAT audit concerning the tax periods 2011-2014, the FTA determined that the taxpayer construction company did not invoice taxable services to the shareholders at a third-party price in connection with the construction of a new apartment building in 2011 and 2012. Before the FAC, the taxpayer denied that the master builder's work had been provided to the shareholders at a preferential price. In addition, the value had not been calculated correctly by the FTA. The Federal Administrative Court concludes that the requirements for an estimate of the value are met due to the lack of third-party price conformity of the services (first stage). Next, the FTA's estimate does not appear to the Federal Administrative Court to be in breach of duty (second stage). Finally, the taxpayer fails to prove the incorrectness of the estimate (third stage). In response to the taxpayer's complaint that interest on arrears was not owed as a result of the FTA's delay, the Federal Administrative Court replied that interest on arrears is regulated by law and that it would have been up to the taxpayer to see to the settlement of its tax debt (even if with reservations). The appeal concerning the 2011 tax period is upheld due to the statute of limitations, otherwise the taxpayer's appeal is dismissed.
Judgment of 22 June 2022 (A-4940/2020): Company tax for radio and television (RTVG); the taxpayer is upheld insofar as the tariff gradation set out in aArt. 67b para. 2 RTVO proves to be unconstitutional in the present case. However, this regulation must also be applied in the present case, as non-application would have serious consequences and would not be proportionate. For this reason, the tax demand for radio and television for 2020 addressed to the complainant is not to be reduced and the contested order is to be confirmed. Accordingly, the appeal by the taxpayer is to be partially upheld, but dismissed in all other respects.