Overview of tax law decisions of the Swiss Federal Administrative Court published between September 11 - 17, 2023:

  • Judgment of 29 August 2023 (A-1485/2022): Customs; import tax; request for restoration of time limit; In the present case, it must be clarified whether the lower court was correct in ordering the subsequent demand for customs duties and value added tax. This examination is based on the question whether the complainant has fulfilled its obligations under the inward processing procedure with regard to the kosher milk powder imported and re-exported in the form of milk chocolate. Both the complainant and the lower court agree that the former did not submit any corresponding applications for definitive exemption from customs duty until the expiry of the deadlines stipulated in the respective authorizations for the disputed imports. The alleged ignorance of legal provisions is not considered to be a non-culpable obstacle justifying the restoration of the time limit. Dismissal of the appeal.
  • Judgment of 4 September 2023 (A-2121/2020): Withholding tax (refund); The question in dispute here is whether a bank domiciled in Denmark is entitled to a refund of withholding tax on Swiss federal bonds and, in particular, whether it qualifies as a beneficial owner of the interest income. The background to the doubts about the right of use are so-called "cross currency swaps" with which the Danish bank hedged its bond purchases. The Federal Administrative Court concludes that although there was no legal on-lending obligation, there was an equally harmful double on-lending obligation, since the on-lending obligation via the "cross currency swaps" depended on the realization of the income from the federal bonds and the bond interest could only be realized if the bank was willing to enter into the "cross currency swaps" contracts in return. The fact that the bank bore the credit default risk - in contrast to, for example, "total return swap" transactions - was considered by the Federal Administrative Court to be of only minor importance in the present case, since with a residual term of one to two years and the Swiss Confederation as debtor, one can speak of ward security. Dismissal of the appeal.
  • Judgment of 19 June 2023 (A-2397/2022): MWST 2018; Remuneration reduction; The documents submitted by the taxpayer are not able to prove, after a free assessment of the evidence, that he ever settled the fee advances received from his former client as remuneration vis-à-vis the FTA. Consequently, the conditions for the reduction in remuneration claimed by the taxpayer in the amount of approximately CHF 40,000 are not met. Dismissal of the appeal.
  • Judgment of September 6, 2023 (A-1446/2021): Withholding tax 2011 and 2012 (levying, monetary benefits); The withholding tax is not levied for a specific period, but on individual benefits. Accordingly, the accrual and due date of the tax claim is not dependent on the conclusion of a tax year, but rather on the due date of the payment in question. Only in the subsidiary case that instead of the due date of the payment (determined by civil law) the approval of the annual financial statement would be used as the date of payment, a certain periodization plays a role in the form of the accounting year. Dismissal of the appeal.

Moving on / Update:

  • A-2585/2022: Value-added tax; mediation in the financial sector 2018 to 2020: decision appealed to the BGer
  • A-3053/2021, A-3055/2021: VAT tax periods 2012 to 2016 (TCM services provided on an outpatient basis): Decision partially confirmed by BGer with ruling of 24.08.2023 (9C_87/2023).

Administrative assistance (incl. updates/re-publications):

Decisions are listed chronologically by publication date.