Decisions of the Swiss Federal Administrative Court ( CW 36 - 2018)

Overview of the tax law decisions of the Swiss Federal Administrative Court published in the week of September 3 - 9, 2018.

Judgment of 22 August 2018 (A-1951/2017): Withholding tax; refund; DTA (Switzerland - UK); refund of withholding tax on a dividend according to DTA CH - GB. Economic justification of the recipient is denied because the obligation to pass on the information to a counterparty within the meaning of the BGer case law is disregarded. 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 in assessing the beneficial ownership, but must first be examined in relation to the question of possible abuse. However, this does not need to be clarified in the present case. (E. 4.5).

Judgment of 12 June 2018 (A-3735/2017): Stamp duties; stamp duty; issue tax; remission; decision confirmed by the Federal Supreme Court in its ruling of 10 August 2018 (2C_621/2018); cf. our contribution of 2 September 2018.

Judgment of 28 June 2016 (A-977/2016): Import taxes; decision confirmed by the Federal Supreme Court in its ruling of 3 August 2018 (2C_721/2016); the ruling of the Federal Supreme Court is intended for official publication; cf. our article of 26 August 2018.

Decisions of the Federal Administrative Court in the area of administrative assistance:

Judgment of 17 August 2018 (A-5687/2017): Administrative assistance (DTA Switzerland - Netherlands); principle of trust under international law; it must be assumed that in the present case the sole purpose of the request for administrative assistance was to investigate and prosecute tax offences and that the lower instance was therefore wrong to act on the request for administrative assistance. The complaint is upheld; no administrative assistance is provided and the final decision of the Federal Tax Administration (FTA) is revoked.