Decisions of the Swiss Federal Administrative Court (CW 6 - 2022)

Overview of the tax law decisions of the Swiss Federal Administrative Court published between 7 - 13 February.

Judgment of 31 January 2022 (A-5784/2020): Value added tax; Input tax deduction; Entrepreneurial activity; Approval of the taxpayer's complaints.
Judgment of 28 January 2022 (A-2027/2021): Customs; decision not to proceed (obligation to perform); dismissal of the taxpayers' appeals.
Judgment of 19 January 2022 (A-4/2021): Agricultural management traffic; dismissal of the taxpayer's appeal.
Judgment of 2 February 2022 (A-2452/2021): alcohol tax; assessment of alcohol tax and reclassification as small producer; dismissal of appeal.

Judgment of 2 February 2022 (A-2514/2021): alcohol tax; assessment of alcohol tax and reclassification as small producer; dismissal of appeal.
Judgment of 1 February 2022 (A-2332/2019): Customs duties; administrative assistance; dismissal of the taxpayer's appeal.
Ruling of 29 November 2021 (A-5073/2020); issue tax; remission in the case of reorganisations: Losses do not have to be derecognised for Art. 6 para. 1 let. k StG and Art. 12 StG to apply. The issue tax and the withholding tax are two separate types of tax. The fact that the capital contribution is exceptionally exempt from the issue tax or that the issue tax is waived should not change the possibility of repayment of the capital contribution without withholding tax. Dismissal of the appeal with regard to the payment of interest on the repayment of the issue duty. Appeal otherwise upheld; new appeal before the Federal Supreme Court.
Judgment of 19 March 2021 (A-3365/2020): import tax/car tax; decision confirmed by judgment 2C_372/2021 of 23 December 2021 (see our article of 30 January 2022).
Judgment of 01 March 2021 (A-4543/2019): emissions levy; decision confirmed by judgment 2C_299/2021 of 17 December 2021 (see our article of 30 January 2022).
Judgment of 3 February 2022 (A-2789/2021): Value added tax (1st quarter 2006 to 4th quarter 2009); tax avoidance; input tax reduction; The fact that the complainant and ultimately D. had a priority right to the aircraft is not sufficient in the present case to conclude that the aircraft was used for private purposes. Overall, the complainant succeeds in proving that D.'s flights were based on a business purpose. Whether he was partially accompanied by family members and whether they used the stays for private purposes is irrelevant and therefore does not need to be clarified further. The chosen structure is in principle to be fully recognised for tax purposes; the taxpayer's appeal is upheld.
Ruling of 15 December 2021 (A-4265/2019): Withholding tax; hidden profit distribution: The "management fees" of around 20% of the rental income paid by the complainant to its group company do not meet the third-party comparison, whereby a monetary benefit subject to withholding tax exists; dismissal of the complaint (newly appealed to the Federal Supreme Court).

Decisions in the area of administrative assistance / non-admission:

Judgment of 12 January 2022 (A-900/2020; A-920/2020): Administrative assistance DTA CH-US; appeal partially upheld; new appeal before the Federal Supreme Court.
Judgment of 13 December 2021 (F-145/2021): Administrative assistance DTA CH-FR; Dismissal of the appeal; the Federal Supreme Court did not hear an appeal against this ruling.
Judgment of 11 January 2022 (A-694/2021): Administrative assistance DTA CH-KR; appeal upheld; decision appealed to the Federal Supreme Court.
Judgment of 3 January 2022 (A-3696/2021): Administrative assistance DTA CH-ES; dismissed;
The Federal Supreme Court did not hear an appeal against this decision.
Judgment of 22 December 2021 (A-3309/2020): AIA; dismissal of the appeal; newly appealed to the Federal Supreme Court.
Judgment of 21 December 2021 (A-4345/2020, A-4367/2020): Administrative assistance DTA CH-RU; appeal dismissed; the Federal Supreme Court did not hear an appeal against this; new appeal before the Federal Supreme Court.
Judgment of 21 December 2021 (A-1533/2018): Administrative assistance DTA CH-RU; dismissal of the appeal,
Judgment of 14 December 2021 (A-4238/2020): Administrative assistance DTA CH-GR; dismissal of the appeal; the Federal Supreme Court did not hear an appeal against this ruling.
Judgment of 2 December 2021 (A-1761/2021): Administrative assistance DTA CH-FR; Dismissal of the appeal; the Federal Supreme Court did not hear an appeal against this ruling.
Judgment of 25 January 2022 (A-1742/2020): Administrative assistance DTA CH-ES; appeal partially upheld; otherwise dismissed.
Judgment of 27 December 2021 (A-6962/2018): Spontaneous exchange of tax rulings; appeal upheld.
Judgment of 21 December 2021 (A-6959/2019): Administrative assistance DTA CH-GR; dismissal of the appeal.
Judgment of 21 December 2021 (A-2655/2020): Administrative assistance DTA CH-RU; dismissal of the appeal.
Judgment of 14 December 2021 (A-6180/2020): Administrative assistance DTA CH-SE; dismissal of the appeal.