Overview of the tax law decisions of the Swiss Federal Administrative Court published in the week of 23 - 29 August 2021.
- Ruling of 10 August 2021 (A-2587/2020): VAT 2011-2015; time of accrual of the tax claim in the case of vouchers (value vs. service voucher); The taxpayer sold, among other things, so-called service vouchers for a specific activity at a specific location; after payment of the invoice, the customer receives the voucher. After paying the invoice, the customer receives the voucher, which he or she can use at a later date to purchase the activity specified on the voucher at the specific location from the taxpayer. The dispute was whether the FTA was right to qualify the taxpayer's turnover from service vouchers that had been proven to have been sold but not yet redeemed (and not yet expired) as advance payments and therefore to take them into account in the discretionary assessment. An advance payment requires the existence of a value-added tax service relationship, including in particular the definiteness or determinability of the service (from the perspective of the service provider), which is the case in casu. The discretionary assessment of the FTA is therefore lawful. However, with regard to the exact point in time at which the tax claim arose, the FTA should not have based its assessment on the time of the actual advance payment, but rather on the slightly earlier time of the issuance of the "advance payment invoice"; however, we refrain from a reformatio in peius. Dismissal of the appeal.
- Judgment of 14 July 2021 (A-2479/2019): Withholding tax; de facto liquidation; The determination of the existence and the time and the amount of a de facto liquidation in connection with the granting of loans to related parties is not objectionable in the present case. The complainant (then sole member of the board of directors and subsequently liquidator), who is jointly and severally liable for the withholding tax, has not succeeded in proving exculpation; dismissal of the complaint.
- Judgment of 30 June 2021 (A-1121/2020): Stamp duty; Swiss A AG acquired 70% of its shareholding in D LLC from B SA for CHF 22.5 million, in the same amount B SA gave A AG a loan. In the event of non-repayment, the parties agreed that A AG would issue new shares to B SA. 10 months after the sale, A AG increased its share capital by CHF 20 million, which was paid up by B SA by offsetting the loan. B SA received a 93.68% shareholding in A AG. The FTA demanded payment of the stamp duty on the capital increase of CHF 20 million. The dispute between the parties is whether Art. 6 para. 1 subpara. abis StG (quasi-merger) applies. The court supported the FTA's argumentation. The wording of the Shareholders Agreement concluded, which is binding under civil law, speaks of a "sale"; at the same time, the issuance of the shares was not intended as a necessary step from the outset, but only in the event that the loan was not repaid at a later date. For the same reasons, there was no close factual connection between the capital increase and the acquisition of the shareholding in D LLC that it was still possible to speak of a single restructuring transaction. The FTA did not elaborate on the argument that the capital increase did not take place promptly, but 10 months later, and that there was therefore no "step-by-step" transfer. Appeal of the taxpayer dismissed.
- Judgment of 04 June 2021 (A-953/2020): withholding tax; non-admission confirmed by judgment 2C_563/2021 of 27 July 2021. See our article of 15 August 2021.
- Judgment of 01 December 2020 (A-1795/2017): withholding tax; appeal upheld by judgment 2C_80/2021 of 29 July 2021. See our article of 22 August 2021.
- Judgment of 26 October 2020 (A-4487/2019; A-4488/2019): value added tax; mortgage transactions; input tax deduction correction; partial confirmation of the decision with judgment 2C_1021/2020 of 28 July 2021. See our article of 22 August 2021.
Decisions in the field of administrative assistance:
- Judgment of August 11, 2021 (A-2772/2021): Administrative assistance (DTA CH-FR); In the present proceedings, it was examined whether the requirements for a revision of the judgment A-1783/2019 are met and what effects such a declaration of nullity would have. The court concludes that direct information of the person entitled to complain pursuant to Art. 14 para. 4 StAhiG was not lawful in the present case. Partial approval and adaptation of judgment A-1783/2019 of 19 May 2021.
- Judgment of 13 August 2021 (A-5964/2019): Administrative assistance (DTA CH-IN); Partial admission of the appeal.
- Judgment of July 13, 2021 (A-6153/2020): Administrative assistance (DBA CH-FR); dismissal of the appeal with judgment 2C_591/2021.
- Judgment of 08 June 2021 (A-5453/2020): Administrative assistance (DTA CH-FR); dismissal of the appeal.
Decisions are listed chronologically by publication date.
