Overview of the tax law decisions of the Swiss Federal Administrative Court published in the week of 18 - 24 January 2021.
- Judgment of 18 November 2020 (A-2490/2020): and Judgment of 18 November 2020 (A-2495/2020): VAT; Performance between closely connected persons (2010-2014); The remuneration between closely connected persons must withstand the principle of third-party comparison. The rent paid in the present case did not correspond to the market price; The set-off was partly too high; Partial approval of the taxpayers' appeals; Decision appealed to the Federal Supreme Court (see also our article of 6 December 2020).
- Judgment of 5 January 2021 (A-1479/2019): Customs; subsequent claim; The application of the preferential tariff rate requires that the imported goods have a declaration of origin and can be clearly identified. The absence of the appropriate designation is not considered a formal error whereby the complainant must attribute to itself the lack of diligence in the customs declaration. Dismissal of the appeal.
- Judgment of 29 December 2020 (A-2430/2019): VAT (Q1 2011 to Q4 2015); The facts at issue in this case concerned an additional tax claim for, among other things, services provided by the taxpayer to its subsidiary. The back tax claim was divided into various relevant items. With regard to the ancillary construction costs that were disputed in this case, the Federal Administrative Court acknowledged that these were to be considered as being in line with the arm's length principle and that, accordingly, no set-offs subject to VAT were appropriate. The offsetting carried out by the FTA under the heading of "tax rate differences", on the other hand, was protected, since the ancillary construction costs in dispute here were taxable at the standard rate (the complainant had claimed a kind of mixed calculation). However, the most significant item in terms of value was the offsetting item, which the FTA justified on the grounds that the complainant had capitalised various other costs or services incurred in connection with the construction project in its accounts, but had not charged these on to the subsidiary, even though a corresponding service had been provided. In this regard, the Federal Administrative Court concludes that, in the absence of an entry in the income statement, there is no natural presumption in favour of the existence of the disputed revenues. It must therefore be assumed - in the absence of any other evidence - that the disputed transactions were not made, which is why the appeal must be upheld on this point.
- Ruling of 5 January 2021 (A-642/2020): VAT; input tax deduction correction/deposit taxation(2011-2014); The taxpayer had claimed deposit taxation for construction costs from previous periods. In the past, she had received donations (resulting in an input tax reduction under the old VAT law) as well as grants. In addition, the property could be used free of charge by a subsidiary. Against this backdrop, the way in which the tax on contributions was determined was in dispute, whereby the calculation applied by the FTA following a VAT audit (combination of input tax correction and input tax reduction; the latter also in relation to the donations under the old law) was protected.
Decisions are listed chronologically by publication date.
