Decisions of the Swiss Federal Administrative Court (CW 29 - 2022)

Overview of tax law decisions of the Swiss Federal Administrative Court published between July 18 - 24, 2022:

Judgment of 4 July 2022 (A-4569/2020): Value added tax 2011-2015; tax-exempt services / refund of mineral oil tax; The tax exemption of, inter alia, various airport ground handling services for airlines pursuant to Art. 23 para. 2 item 8 VAT Act as well as an input tax reduction due to refund of mineral oil tax pursuant to Art. 33 para. 2 in conjunction with Art. 18 para. 2 lit. Art. 18 para. 2 lit. a MWSTG. Partial approval of the taxpayer's appeal with regard to the set-off concerning the tax period 2011 as time-barred as well as with regard to individual services which are either tax-exempt or have to be further clarified by the lower court. Otherwise, dismissal of the appeal with regard to the tax exemption of further services as well as with regard to input tax reduction due to reimbursement of mineral oil tax. The latter is a financial aid in the sense of Art. 3 para. 1 SuG and this is to be subsumed under Art. 29 lit. a MWSTV, which is why a subsidy in the sense of Art. 18 para. 2 lit. a MWSTG exists and the input tax deduction is to be reduced in accordance with Art. 33 para. 2 MWSTG.
Judgment of 1 June 2022 (A-5920/2020): Local jurisdiction of assessment in case of uncertain or disputed jurisdiction; The provision of Art. 108 DBG (place of assessment by FTA), even if it does not refer to cantonal and communal taxes, has a precedential effect on them, since the legislator has established the principle of unity of the place of assessment and collection in Art. 105 para. 1 DBG. This is all the more decisive in the present case as cantonal proceedings are pending before the Administrative Court in Geneva. Since the appeal is materially directed against the involved cantons (Geneva and Schwyz), they are to be designated as respondents regardless of their application. If, as in the present case, no assessment has yet been made for 2010, an attempted tax evasion or a possible post-tax ground can only lead to ordinary assessment proceedings. Each tax period is subject to a separate assessment, so that if a canton notifies the taxpayer or another canton of its intention to assess for a certain period, this does not automatically apply to the next tax period. In the present case, this results from the dispatch of a tax return (Geneva) for 2009, which, however, only applies to the period designated in the form. Thus, in the present case, the taxpayer has to provide proof of the new residence (Schwyz) for the year 2009 as well as for the year 2011. The taxpayer claimed that his intention to settle in the Canton of Schwyz was apparent to all third parties and had been obvious since 2009. In this context, he relies in particular on the two apartments he rented there from December 2009 for a total of CHF 7,600 in Schindellegi (SZ). In contrast, he claims that his properties in the Canton of Geneva were rented to third parties. However, the presence of the taxpayer's wife and his son in Geneva is confirmed by the investigation report of the Geneva tax administration, which refers to the period from May to October 2012. Admittedly, the investigation report refers to the year 2012, a tax period that is not affected by the present proceedings. However, it makes it possible to establish the presence of the son and the wife in Geneva in 2012 and thus, in a broader sense, at least at the end of 2011, in connection with the enrollment of the taxpayer's son in school. In summary, the Court finds that the Taxpayer's connections for 2011 were closer to Geneva, as he also does not qualify as an executive, in particular. The appeal of the Geneva Tax Administration (tax period 2010 only) is dismissed.
Judgment of July 05, 2021 (A-5536/2019): Withholding tax; The Federal Supreme Court confirmed the decision in its ruling of 10 June 2022 (2C_638/2021), see our article of 24 July 2022.
Judgment of 6 July 2022 (A-4600/2019): Recovery of customs duties; The court judges the estimate of the undeclared goods (in particular meat) of the lower court to be correct and reasonable; Dismissal of the appeal of the duty payer.
Judgment of 5 July 2022 (A-6526/2020): VAT (Q1 2008 - Q4 2009); transactions abroad, proof; the taxpayer did not prove in a legally sufficient manner that the disputed revenues originate from work (supplies) abroad; consequently, they are subject to Swiss VAT; dismissal of the appeal.

Decisions in the area of administrative assistance (incl. republications / updates regarding further appeal):