Overview of the tax law decisions of the Swiss Federal Administrative Court published in the weeks from 29 June - 12 July 2020.

  • Judgment of 18 June 2020 (A-6209/2019): Radio reception fees: The complainant registered at the X address for radio and reception fees on 21 November 2005, but from October 2009 the fees were no longer paid. On 12 January 2017, an inspection revealed that the complainant lives at a different address. The complainant did not pay the post-clearance recovery for the years 2009-2017 because he lived with his parents during the period in question. The obligation to pay the fee applies as long as no written notice of departure has been given. Retroactive deregistration is not possible. Rejection of the complaint. ‍
  • Judgement of 8 May 2020 (A-2286/2017): Withholding tax; monetary value benefit; No suspension of proceedings is appropriate in the present case (in particular acceleration of proceedings), even if criminal and administrative proceedings against the executive bodies are still pending in the present case; in particular reference to a judgement of the Federal Court (2C_382/2017), which concerned a different tax period (cf. our contribution of 20 January 2019), but can also be applied to the period in dispute and cannot be invalidated by the complainant despite new findings from the other proceedings; rejection of the taxpayers' appeal; decision challenged before the Federal Supreme Court; see also our contribution of 24 May 2020.
  • Judgment of 6 May 2020 (A-5601/2019): VAT; transactions in precious metals (2011 - 2014); the appellant is part of an international group and carried out various transactions in precious metals. In various constellations, it received industrial and precious metal waste and forwarded it to a Group company for processing. The volume and stock of deliveries was (partly) credited to a (precious metal) account. As the complainant was not granted any economic power of disposal or right of use of the precious metals, there is no VAT-relevant exchange of services; acceptance of the taxpayers' appeal; decision challenged in the Federal Supreme Court; cf. also our contribution of 24 May 2020.
  • Judgment of 30 April 2020 (A-2978/2019): VAT (1st quarter 2010 to 4th quarter 2012). Statute of limitations, protection of confidence, donations; The charitable foundation A. asked the FTA for information regarding the taxability of its services in the area of CO2 compensation. The FTA stated that donations from legal entities that are linked to a consideration cannot be split into a tax-free (donation) and a taxable portion (communication and marketing services), but are taxable as a whole. She also stated that trading in CO2 emission rights from 1 July was considered exempt from tax. On the occasion of a VAT control, various subsequent charges were ordered against which the A. filed a complaint. The interruption of the statute of limitations can also be caused by a defective injunction. Provided that the condition of protection of legitimate expectations is fulfilled, this is to be weighted higher than the (deviating) new case law. A donation only exists if the donor is named in a neutral form and without an advertising slogan. Partial approval of the appeal; decision appealed to the Federal Supreme Court.
  • Judgment of 9 December 2019 (A-957/2019): Customs; additional demand for import duties; for details see our contribution of 22 December 2019; decision confirmed by judgment of 18 May 2020 (2C_97/2020); see our contribution of 7 June 2020.
  • Judgment of the Federal Administrative Court of 23 January 2019 (A-714/2018): Import of works of art by Mr Schwarzenbach); cf. our detailed article of 3 February 2019; decision confirmed by the Federal Supreme Court in its judgments of 27 April 2020 (2C_217/2019 and 2C_219/2019); cf. our article of 7 June 2020.
  • Judgment of 28. 2018 (A-7299/2016): Withholding tax (refund); controversial was the refund of withholding tax in an EU group relationship for a dividend paid by the Swiss subsidiary to its shareholder (an Irish parent company); due to the personal union of the boards of directors between the management of the parent company and the grandparent company, neither the generation nor the use of the disputed dividend could be regarded as being at the discretion of the parent company, which is why the right of use was to be denied to it; dismissal of the appeal by the appellant; decision confirmed by the Federal Supreme Court in its judgment of 20 February 2018 (A-7299/2016): ruling of 28 February 2018 (A-7299/2016): The appellant's appeal was rejected. April 2020 (2C_354/2018); see also our contribution of 28 June 2020.
  • Judgment of 22 August 2018 (A-1951/2017): Withholding tax; refund; DTA (Switzerland - UK); refund of withholding tax on a dividend in accordance with DTA CH - GB. Beneficial entitlement of the recipient denied, because there is an obligation to forward the dividend to a counterparty within the meaning of the BGer case law. There is indeed an interdependence between the achievement of the dividend and the compensation payments to the counterparty (E 4.4). The question of whether a particular construct is tax motivated is not relevant for the assessment of the beneficial owner, but must first be examined in relation to the question of possible abuse. In the present case, however, this does not need to be clarified. (E. 4.5). Decision confirmed by the Federal Supreme Court in its ruling of 19 May 2020 (2C_880/2018); cf. our contribution of 12 July 2020.
  • Judgment of 23 June 2020 (A-2950/2019): VAT; Tax exemption under Article 53(1)(a) VAT Act; In her letter accompanying the VAT statement (Q1/2018), the appellant informed the lower instance that she waived the "collection" of VAT up to a purchase amount of CHF 300 and therefore deducted the turnover of the uncollected VAT from the taxable turnover in the statement form. In return, it had also corrected the input tax on the purchase of these products. The taxpayer essentially justified its action on the grounds of the value-free limit when crossing the border at customs and the resulting discrimination against customers purchasing in Austria. Consequently, the Federal Administrative Court had to clarify whether the complainant had to pay tax at the relevant tax rate on all her taxable services - and not only on those whose remuneration exceeds CHF 300. In this respect, the Federal Administrative Court held that an analogous application of the exemption limit under Art. 53 para. 1 let. a MWSTG - as claimed by the complainant - to services provided for remuneration in Switzerland is not possible in consideration of the principle of legality. The extent to which the above provisions violate statutory or constitutional law cannot be examined by the Federal Administrative Court in the context of the present proceedings, as this would be tantamount to an inadmissible abstract review of norms. Rejection of the complaint.

Decisions in the field of administrative assistance:

Decisions are listed chronologically by publication date.

Tax topics covered in this post:
Value Added Tax (VAT)
Treaties
AIA
Withholding Tax
Custom Duties