Decisions of the Swiss Federal Administrative Court (CW 40 - 2023 )

Overview of tax law decisions of the Swiss Federal Administrative Court published between October 2 - 8, 2023:

Judgment of September 13, 2023 (A-2396/2022): Withholding tax 2012; The complainant A. AG is active in the field of asset management, in particular also regarding real estate and its financing. The FTA opened administrative penalty proceedings against B (delegate of the board of directors). The investigation report revealed that B. had occupied a property of A. AG from July 2010 until May 2012 without paying rent for it. Likewise, A. AG had booked renovation work of CHF 54,000 by C. AG. The FTA sent a tax invoice addressed to A. AG for the business year 2012 with a corresponding withholding tax claim. According to the Federal Administrative Court, A. AG could have countered the consequences of default interest by properly declaring and accounting for the tax owed or by paying the tax earlier as a precautionary measure subject to reservation. The legal claim that B. should be deleted as a party to the proceedings cannot be upheld, as it is not evident how A. AG could derive any practical benefit from an amendment. The present case concerns a claim for tax arrears on the basis of (disputed) pecuniary benefits. This is an administrative procedure, which is why Art. 6 ECHR does not apply. The FTA has rightly found that the complainant has provided monetary benefits in the total amount of CHF 62,750 and therefore owes her the withholding tax amount of CHF 21,962.50. Regarding the amount of the interest rate for withholding tax, it was repeatedly stated that the interest rate was determined by the Federal Department of Finance and that this was based on an explicit legislative delegation within the meaning of Art. 16 para. 2 VStG. Dismissal of the taxpayer's appeal.

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