Overview of the tax law decisions of the Swiss Federal Administrative Court published in the week of 22 - 28 November 2021.

  • Ruling of 16 November 2021 (A-2433/2021): Withholding tax (refund; DTA CH-DE): Pursuant to Art. 28 para. 3 DTA CH-DE , the application for a refund of withholding tax must be submitted to the FTA within a period of three years after the end of the calendar year in which the dividends or interest became due (forfeiture period). If the refund application lacks an official certificate of residence, the refund cannot be granted (no grace period granted after expiry of the 3-year period); dismissal of the appeal.
  • Judgment of 11 November 2021 (A-2566/2020): VAT (2012 to 2015); in the present case, the funds credited to the complainant for the construction of the new community centre constitute a contribution to companies within the meaning of Art. 18 para. 2 subpara. e VAT Act, which does not result in a reduction of the input tax deduction pursuant to Art. 33 para. 1 VAT Act; the complaint of the municipality is upheld.
  • Judgment of 10 November 2021 (A-4667/2020, A-4679/2020): Customs; obligation to pay in arrears; preferential clearance; In the present case, the buses entered Switzerland without being declared and thus illegally. Art. 19 para. 2 letter b ZG is therefore applicable. The fact that they were reported to customs after the illegal import is not decisive. The FCA was therefore justified in applying Article 19(2)(b) of the ZG and paying customs duty on the vehicles at the normal rate. By transferring the 32 vehicles without carrying out proper border customs clearance and subsequently wrongly paying customs duty at the preferential rate, an unlawful advantage was obtained. The objective facts of customs evasion (Art. 118 of the Customs Act) are thus fulfilled; the complaint of the duty payers is dismissed.
  • Judgment of 28 June 2021 (A-2119/2021): VAT (2011-2014); fee reduction; In the present proceedings, the Federal Administrative Court had to examine whether the conditions for a subsequent amendment of the VAT (domestic tax) were met in the present case. Specifically, the issue was whether the payments made on the part of the complainant could be considered refunds. After a thorough review of the facts, the Federal Administrative Court came to the conclusion that the complainant was not able to prove that there had actually been a reduction in remuneration. Thus, no subsequent amendment of the VAT debt was appropriate. Dismissal of the appeal; reconfirmed by BGer 2C_647/2021.

Decisions in the field of administrative assistance:

Decisions are listed chronologically by publication date.

Tax topics covered in this post:
International Tax
Treaties
Withholding Tax
Custom Duties
AIA
Value Added Tax (VAT)