Decisions of the Swiss Federal Administrative Court (CW 37 - 2019 )

Overview of the tax law decisions of the Swiss Federal Administrative Court published in the week from 9 to 15 September 2019.

Judgment of 30 August 2019 (A-6686/2018): value added tax (VAT); discretionary assessment (2009-2012); joint and several liability; regarding the question whether the complainant is jointly and severally liable with the liquidated B. GmbH, the appeal is not admitted. In all other respects, the appeal is partially upheld to the extent that it is determined that the VAT claim against B. GmbH amounts to (CHF 5,900.70 plus interest) for the tax periods 2009 and (CHF 15,673.90 plus interest) for the tax periods 2010 to 2012. The case is remanded to the lower court for the calculation of interest.

Judgment of 28 August 2019 (A-5200/2018): Value Added Tax (VAT); tax avoidance; "the lower instance rightly set the appellant's tax credit at FRF (...) and demanded repayment of FRF (...) accordingly. The question of whether interest on arrears is due on the "amount to be repaid" and, if so, how high that interest should be set, was left open by the previous instance in the contested decision, in that it held out the prospect, in point 5 of the dispositive, that any statutory interest on arrears or remuneration owed would be calculated separately. In her complaint, the complainant did indeed demand the definitive fixing of a "remuneration interest rate"; however, she did not dispute a possible "default interest rate". The question of default interest is thus excluded from the subject matter of the dispute (E. 1.2) and the lower court will still have to examine whether, in the present situation, "default interest" is due at all and, if so, how much and from when it should be fixed". (E. 3.9 f.). The appeal is dismissed.

Judgment of 26 June 2019 (A-4898/2018): Value added tax (VAT); airport charges; deduction of input tax (2010-2014). "The previous instance rightly assumed that there was a tax-exempt transfer or letting of a property or part of a property within the meaning of Art. 21(2)(21) MWSTG. As there is no doubt that there was no option for the corresponding turnover, the legal system excludes the right to deduct input tax for expenses incurred in connection with the construction, maintenance and operation of the temporary noise protection system" (E. 7.2). The complaint is partially upheld and the case is dismissed for the purposes of the considerations for further clarification of the facts and the reassessment of the amount of tax to be recovered for the period from 1 January 2010 to 31 December 2014. Decision challenged in the Federal Supreme Court.