Overview of the tax law decisions of the Swiss Federal Administrative Court published in the week of 10 - 16 December 2018.
- Judgment of 29 October 2018 (A-6828/2017): Stamp duties (emissions tax). On the occasion of an exchange program of A. AG shares for C. AG shares, C. AG acquired a 97.3% stake in A. AG. In order to achieve the 98% shareholding required for a squeeze-out under stock exchange law (still possible by the end of 2015), a conditional capital increase of A. AG with exclusive subscription rights for E. AG (subsidiary of A. AG) was resolved. To this end, A. AG granted a loan to E. AG. with which E. AG paid the necessary number of A. AG shares at par value and subsequently sold them at the price of the par value to repay the loan to A. AG. AG was able to sell. Subsequently, the A. AG sold 0.7% of its own shares to C. AG. In the process, a claim of C. AG to a stock dividend was repaid. According to the SNB, the capital increase of A. Ltd. or payment of the share capital subsequently carried out following the exchange offer does not qualify as a quasi-merger, i.e. the exception of Art. 6 para. 1 lit. abis StG does not apply. The reason for this is that the capital increase of A. AG is not to be regarded as part of a uniform transaction with the original exchange offer and is not to be qualified as a quasi-merger in itself, because no capital increase of the acquiring company (C. AG) but of A. AG has taken place. This means that the process cannot be carried out free of emissions charges. Nevertheless, the view that only an inflow to the A. AG in the amount of the nominal value of the participation rights (without premium). The reason for this is that there was an optional bond (C. AG's choice between a cash dividend against KER or stock dividend), whereby the fact that C. AG had opted for the stock dividend resulted in the extinguishment of the first option in accordance with Art. 72 OR. The distribution of the A. AG shares to C. AG was thus considered as repayment of this debt, whereby A. AG received a net payment only to the extent of the nominal value of the A. AG shares. Partial acceptance of the appellant's complaint. Decision challenged in the Federal Supreme Court.
- Judgment of 2 August 2018 (A-6224/2016): Value added tax (VAT); Subjective tax liability; osteopathy; tax period 2010; the proceedings before the Federal Supreme Court were written off by decision of 9 November 2018 (2C_770/2018) (see our article of 2 December 2018).
- Judgment of 2 August 2018 (A-6236/2016): Value added tax (VAT); Subjective tax liability; osteopathy; tax period 2010; the proceedings before the Federal Supreme Court were written off by decision of 9 November 2018 (2C_768/2018) (see our article of 2 December 2018).
- Judgment of 2 August 2018 (A-6248/2016): Value Added Tax (VAT); Subjective tax liability; osteopathy; tax period 2010; the proceedings before the Federal Supreme Court were written off by decision of 9 November 2018 (2C_771/2018) (see our article of 2 December 2018).
- Judgment of 2 August 2018 (A-6197/2016): Value added tax (VAT); Subjective tax liability; osteopathy; tax period 2010; the proceedings before the Federal Supreme Court were written off by decision of 9 November 2018 (2C_772/2018) (see our article of 2 December 2018).
- Judgment of 27 November 2018 (A-6590/2017): Customs; importation of an aircraft; incurrence of tax debt; interest on arrears; the complaint is partially upheld to the extent that it is admissible.
Decisions of the Federal Administrative Court in the area of administrative assistance:
- Judgment of 28 November 2018 (A-3275/2018 and A-3276/2018): Administrative assistance (DTA Switzerland - Sweden); the appeal is dismissed.
- Judgment of 20 November 2018 (A-6895/2017): Administrative assistance (DTA Switzerland - Finland); request for administrative assistance from the Finnish tax authority (FTA) based on Art. 26 of the DTA CH-FI on the basis of the following constellation: a Finnish company whose taxation is at issue is a subsidiary of a group whose parent company is located in Switzerland. However, according to the request, the information owner is another Swiss subsidiary which carries out production and distribution activities for three other group companies and prepares the consolidated financial statements of the group. The question arises as to whether the information required by the FTA is available under Swiss law and administrative practice, and thus whether Art. 26, para. 3b DBA CH-FI does not preclude its transmission. The decisive factor is whether the comprehensive obligation to cooperate (of the taxpayer) pursuant to Art. 126 DBG or the limited obligations to cooperate pursuant to Art. 127 to 129 DBG are applicable. Since the information owner (the Swiss subsidiary) is not the taxpayer but a third party, only Articles 127 to 129 DBG are applicable. The present context concerns the interpretation of Art. 127(1)(e) DBA, according to which persons who do or have done business with the taxpayer are obliged to issue written certificates (only) concerning the mutual rights and benefits vis-à-vis the taxpayer. In the case at hand, there is only a contract between the Finnish company and the group parent company (delivery of the business figures to the Swiss subsidiary) and a contract between the Swiss subsidiary and the group parent company (preparation of consolidated accounts also based on the figures delivered by the Finnish company). Therefore, even if the Finnish subsidiary has to provide the Swiss subsidiary with financial figures, there is no legal relationship between the two companies that would result in an obligation of certification (or information) by the Swiss subsidiary to the Finnish subsidiary. Approval of the complainants' complaint. Decision challenged in the Federal Supreme Court.
- Judgment of 12 November 2018 (A-625/2018 and A-3455/2018): Administrative assistance (DTA Switzerland - Sweden); the complaints are approved to the extent that the dates within the meaning of recitals (E. 6.3.5) must be completely blackened [...]. The request to make the judgment anonymous and to publish it without the requested information is granted. For the rest, the appeals are dismissed; decision contested before the Federal Supreme Court.
- Judgment of 12 October 2018 (A-6290/2017): Administrative assistance (DTA Switzerland - Spain); The Federal Supreme Court did not uphold the appeal in its decision of 14 November 2018 (2C_995/2018) (cf. our contribution of 2 December 2018).
- Judgment of 26 November 2018 (A-1231/2018): Administrative assistance (DTA Switzerland - Canada); the appeal is upheld in part; the provisions of the final ruling have been amended in that the information on 2011 income listed in the bank documents to be submitted must be blackened.
Decisions are listed chronologically by publication date.
