Overview of the tax rulings of the Swiss Federal Administrative Court published between November 6 - 12, 2023:
- Judgment of October 18, 2023 (A-5392/2021): VAT 2020, input tax deduction, contribution taxation; the taxable person was entered in the VAT register as of January 1, 2018. For Q1-Q3/2020, it claimed input VAT for consulting services that it had received and charged in the years 2015-2017, but which were only invoiced to it at the end of Q3/2020. The FAC held that the taxable person was not entitled to deduct input VAT for the years 2015-2017 due to a lack of tax liability (material requirement for input VAT deduction). Furthermore, the taxable person could also not deduct the input VAT under the title of input VAT deduction because the consulting services purchased were already used up and no longer available at the time they were purchased (see Art. 72 para. 2 VATO). Interest on arrears is also owed on the wrongly claimed input tax deductions (Art. 87 para. 1 MWSTG) because Art. 87 para. 2 MWSTG is not to be understood to mean that the subsequent charge must be due to an error (by the taxable person) (i.c. failure to claim the input tax deduction 2015-2017), which - had it not been made - would not have led to a tax loss, but should be interpreted in such a way that the Confederation should not have incurred a tax loss even if the tax case had been settled on the basis of the taxpayer's missing information. If the FTA had not noticed the incorrectly deducted input tax in the present case, this would have led to a loss of tax in the amount of the input tax deduction for the federal government. Dismissal of the taxpayer's appeal.
- Interim ruling of August 29, 2023 (A-1348/2023); direct federal tax, place of assessment; In this case, it must be examined whether the appeal of March 8, 2023 was filed in good time, i.e. within the deadline. The decisive factor here is the point in time at which the contested ruling came into the legal representative's sphere of influence. For its part, the legal representative acts as an auxiliary of the appellant and must take credit for the conduct of Swiss Post if a special delivery agreement exists. The item in dispute was addressed to the lawyer's correspondence address. According to the information in the "Track & Trace" extract from Swiss Post, the item was posted for dispatch via A Mail Plus on Friday, February 3, 2023, at 4:30 pm. On Saturday, February 4, 2023, after arriving at the pick-up/delivery point at 10:55 a.m., the consignment in question could not be successfully delivered to the recipient according to the "Track & Trace" statement (note "Unsuccessful delivery") and delivery was finally made on Monday, February 6, 2023, at 8:40 a.m. In the present case, the lower court considers Saturday, February 4, 2023, to be the relevant time of delivery. In summary, it explains that Swiss Post did not serve the order of February 3, 2023 on the appellants or their legal representation on Saturday, February 4, 2023, based on an oral agreement with the legal representation. The FAC concludes that, contrary to the note made by Swiss Post on Saturday, February 4, 2023, no unsuccessful attempt was made to serve the order on the legal representation. Furthermore, the lower court is unable to demonstrate that a special delivery agreement existed. The appeal against the FTA's ruling was therefore lodged in good time. The appeal is upheld.
- Judgment of October 18, 2023 (A-4862/2022): Remission of import tax due to insolvency of the taxable importer. Due to the late application for remission, the appeal must be dismissed. Furthermore, the appellant bears the burden of proof that the claim is irrecoverable. Dismissal of the taxpayer's appeal.
Administrative assistance (incl. updates/re-publications):
- A-1446/2023 Household tax - The FSC did not accept the appeal.
Decisions are listed chronologically by publication date.