Decisions of the Swiss Federal Administrative Court (CW 43 - 2018 )

Overview of the tax law decisions of the Swiss Federal Administrative Court published in the week of 22 - 28 October 2018.

Judgment of 6 September 2018 (A-5649/2017): Value added tax, tax periods 2007-2012 (discretionary assessment, tax succession); it was disputed whether the subsequent tax claims of the FTA were lawful. In this regard, it first had to be clarified whether the complainant was the tax successor of the C GmbH and whether she had assumed its rights and obligations. At the time of the complainant's formation, the C GmbH not only existed as a shell company but still declared considerable turnover, which was also attributable to it for VAT purposes. Thus it did not cease to be a taxable entity. The present facts of the case are not comparable with those in the judgment of the Federal Constitutional Court (BVGer) A-3141/2015 and A-3144/2015 of 18 January 2017 and are not beyond the bounds of economic reason. Thus, no tax succession pursuant to Art. 16 para. 2 MWSTG or as a result of tax avoidance can be identified. The complainant has not entered into the rights and obligations of B. GmbH or C GmbH and is therefore not liable for their tax debts. It is therefore not necessary to examine the legality of the discretionary additional tax claims. Approval of the taxpayers' appeal and reversal of the decisions of the lower courts. The decision was appealed to the Federal Supreme Court.

Judgment of 18 May 2018 (A-3145/2017): Customs duties; confiscation of money, inspection of files/refusal of justice; the Federal Supreme Court dismissed the case by judgment of 12 September 2018 (1C_334/2018).

Judgment of 17 April 2018 (A-6785/2016): Withholding tax (registration procedure), decision confirmed by the Federal Supreme Court in its ruling of 5 October 2018 (2C_470/2018).

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

Judgement of 26 September 2018 (A-6918/2017): Administrative assistance (DTA Switzerland - Japan); the appeal is dismissed The decision was appealed to the Federal Supreme Court.