Overview of the tax rulings of the Swiss Federal Administrative Court published between November 20 - 26, 2023:
- Judgment of November 10, 2023 (A-1789/2023): Levying of withholding tax / non-cash benefit; the taxpayer sold two houses (nos. 6 and 8) of a development to its two shareholders at the end of 2016 by means of a property purchase and work contract. It was disputed whether the consideration paid by the shareholders in the amount of CHF 1,000,000 each stood up to a third-party comparison. According to the FTA, this consideration would differ significantly from the prices of CHF 1,430,000 paid by third parties for houses no. 5 and 7. The FTA uses comparable transactions carried out with independent third parties as a market-oriented comparative price. In principle, this approach is not objectionable in the present case. The comparative prices established by the lower court for houses no. 6 and 8 in the amount of CHF 1,430,000 each and the corresponding profit distribution in the amount of the difference must therefore be confirmed. Dismissal of the appeal.
- Judgment of November 13, 2032 (A-6100/2022): Customs/import tax; obligation to pay; the obligation to pay within the meaning of Art. 12 VStrR depends neither on criminal liability nor on culpability or even the initiation of criminal proceedings. It is sufficient that there is an objective violation of federal administrative legislation. Majority dismissal of the complaint of the liable freight forwarder.
- Judgment of November 10, 2023 (A-4683/2021): Subsequent claim for import and tobacco duties; the fact that the Schaffhausen Customs District Directorate issued a decision on the obligation to pay before the conclusion of the administrative penalty proceedings is not objectionable. Insofar as the lower court accepted the appeal and confirmed the subsequent demand for import and tobacco duties on the basis of Art. 12 para. 2 VStrR, its decision must be confirmed. However, the lower court cannot be upheld insofar as it did not uphold certain items on the grounds that the amount in question had already been paid by a person jointly and severally liable. Art. 70 para. 3 ZG expressly provides that recourse between jointly and severally liable customs debtors is governed by the Code of Obligations. According to the relevant rules of the Swiss Code of Obligations regarding the relationship between jointly and severally liable debtors, each jointly and severally liable debtor must in principle assume an equal share of the payment made to the creditor and the party paying more than its share has recourse to its co-debtors for the excess amount. This claim can be enforced in civil proceedings. Contrary to the opinion of the lower court, the complainant could have achieved a practical benefit by (possibly) winning his complaint. This lies in the fact that civil recourse against him would be excluded to the extent of any victory. The complainant therefore had an interest worthy of protection within the meaning of Art. 48 para. 1 let. c VwVG, irrespective of the fact that the amount demanded had already been paid. The lower court wrongly did not accept the appeal to this extent. Partial upholding of the appeal.
- Judgment of November 14, 2023 (A-3145/2021): Customs; import assessment of fruit juice; in the present case, it must be clarified whether the product "(brand) Cranberry Classic" imported by the appellant is to be classified under tariff heading 2202.1000 ('flavored table drink'; according to the appellant) or tariff heading 2202.9932 ('a fruit juice diluted with water'; according to the lower instance). At the time of the disputed import, a customs duty of CHF 2.00 per 100 kg gross (standard rate) applied to imports of goods under tariff number 2202.1000. For goods of tariff number 2202.9932, a rate of CHF 59.50 per 100 kg gross (standard rate) applied. In summary, the appellant claims that the product "(brand) Cranberry Classic" contains less than 25% cranberry juice and therefore falls under tariff number 2202.1000. However, the FAC, referring to the laboratory findings of METAS, states that the disputed product "(brand) Cranberry Classic" contains 27% cranberry (fruit) juice. It is therefore a fruit juice diluted with water and is to be classified under tariff number 2202.9932. Dismissal of the complaint.
Administrative Assistance:
Decisions are listed chronologically by publication date.
