Overview of the tax law decisions of the Swiss Federal Administrative Court published during the week of 14 - 20 December 2020.
- Judgment of 26. October 2020 (A-4487/2019, A-4488/2019): Mortgage transactions subject to VAT, input tax deduction correction (2009-2013); B AG concludes mortgage agreements in its own name and then cedes the mortgage loan receivables (without notifying debtors) to V AG (risk carrier); on behalf of V AG, B AG continues to manage the ceded mortgage receivables, collects the mortgage interest and passes on part of this (transfer price) to V AG after deducting a fee for the management; B AG has until now declared the remuneration as remuneration exempt from tax; it is disputed whether the entire amount remaining with B AG after the transfer price has been passed on constitutes taxable remuneration for the management or whether a substantial part of it constitutes the so-called "originating" remuneration. Originating (activities of B AG until closing, disbursement and accounting of the mortgage) (tax-exempt remuneration); no legally sufficient indications from the servicing agreement that the originator fee is a fixed component of the remuneration to B AG; statements of B AG on the economic content of the transactions are comprehensible, but cannot provide strict proof of tax-reducing facts; complaint of the taxpayer dismissed; decision appealed to the Federal Supreme Court (see also our article of 8 November 2020).
- Ruling of 9 March 2020 (A-460/2019): VAT; subsidy / input tax deduction reduction ; the "endowment capital" of the taxable public-law institution qualifies as a subsidy or another contribution under public law within the meaning of Art. 18 para. 2 let. a VAT Act and not as a capital contribution - with corresponding consequences for the input tax deduction, which must be reduced by applying Art. 75 para. 2 VAT Ordinance. The same applies to a reduction granted to the establishment for a building lease. Here, an input tax reduction pursuant to Art. 75 para. 3 VATO applies; dismissal of the taxpayer's appeal; decision partially confirmed by the Federal Supreme Court (seeour article of 13 December 2020).
Decisions in the field of administrative assistance:
- Judgment of 18 November 2020 (A-1490/2020): administrative assistance (DTA CH-ES); dismissal of the appeal, requiring the FTA to refer to the principle of speciality.
- Judgment of 3 December 2020 (A-5309/2019): administrative assistance (DTA CH-ES); dismissal of the appeal obliging the FTA to refer to the principle of speciality.
- Judgment of 2 December 2020 (A-3843/2019): administrative assistance (DTA CH-US); dismissal of the appeal, requiring the FTA to refer to the principle of speciality.
- Judgment of 2 December 2020 (A-6859/2019): Administrative assistance (DTA CH-IN); Partial approval of the appeal with an obligation for the FTA to refer to the principle of speciality.
- Judgment of 25 November 2020 (A-892/2019): administrative assistance (DTA CH-JP); dismissal of the appeal obliging the FTA to refer to the principle of speciality.
Decisions are listed chronologically by publication date.
