Overview of the tax rulings of the Swiss Federal Administrative Court published between February 12 - 18, 2024:

  • Judgment of February 1, 2024 (A-5711/2022): VAT; non-entrepreneurial area; determination of the input tax claim 2013-2018; in this decision, the FAC examines whether the appellant has a non-entrepreneurial area in addition to the entrepreneurial area. It is also disputed in the present case whether the press promotion contribution is a subsidy or a price reduction or fee reduction (according to the complainant). In the present case, the complainant provides the services in the non-profit sector without consideration. There is therefore no remuneration that could be offset against the complainant's services. It is therefore a non-entrepreneurial area. According to the judges, the two areas also have a certain degree of independence. This means that the input tax claimed by the appellant must be corrected insofar as it is used for goods or services outside of its business activities. In addition, the court addresses the question of whether the press subsidy is a subsidy or not. After interpreting the relevant provisions, the court comes to the conclusion that the press promotion contributions received by the appellant are a subsidy, which leads to a reduction in the input tax deduction. However, as the VAT claim for 2013 is time-barred, the appeal regarding the 2013 tax year is upheld, but otherwise dismissed.
  • Judgment of January 29, 2024 (A-2253/2022): VAT; supplies to closely related persons 2014-2018; A AG is an architectural firm with C as the only member of the board of directors; C commissioned A AG to build two apartment buildings, one of which was intended for C; during an inspection, the FTA, applying the price comparison method (comparison of the purchase prices of the different apartments), came to the conclusion that the services to C were not charged at third-party prices; according to the FAC, there was leeway in the choice of valuation method and the choice of the price comparison method was not objectionable in the present case. According to the FAC, there is leeway in the choice of valuation method and the choice of the price comparison method is not objectionable in the present case; the SIA tariff at which A AG invoiced its architectural services to C was recognized as a third-party price, but the construction services were not invoiced at a third-party price; the construction invoice, which refers to the invoicing of the "prime costs" to C, indicates this; the price difference can therefore not be attributed solely to the differences between the two apartments; the lower instance thus calculated the third-party price correctly in principle. However, it wrongly assumed a third-party price including VAT, which led to a reduction in the tax owed of CHF 69. The appeal of A AG is approved to this modest extent, but otherwise dismissed.
  • Judgment of January 31, 2024 (A-2978/2022): VAT, supplies to closely related persons 2012-2017; A AG had not recorded the supplies it had made to the construction consortium in its accounts and declarations. In the present case, the construction consortium acted externally as a simple partnership under its own name and thus the requirement of subjective tax liability pursuant to Art. 10 para. 1 let. b VAT Act is met. The lower court rightly classified the services of A AG as external transactions relevant for VAT purposes and subsequently claimed VAT on them. A AG's appeal is partially upheld (the statute of limitations has expired for the 2012 and 2013 tax periods; approval of the contingent application regarding the reduction of the additional VAT claim for the 2016 tax period due to concurring applications), but otherwise dismissed.
  • Judgment of December 20, 2023 (A-3395/2023): VAT 2014-2017; the event fees received by the appellant association A from the organizer (partially offset) are remuneration for taxable services provided by association A to the organizer in connection with the organization of the sports event; the FTA rightly qualified these event fees as taxable remuneration, subsequently refused to apply the tax exemption of Art. 21 para. 2 no. 15 VAT Act and subsequently charged the appellant association A CHF 340,902 plus default interest. Dismissal of the appeal of the taxpayer Association A.

Administrative assistance

Updates:

  • A-5911/2019 (VAT 2015; decision overturned by the Federal Supreme Court in its ruling of 14.04.2021 (2C_345/2020))
  • A-947/2022 (withholding tax (collection); decision overturned by the Federal Supreme Court in its ruling of 08.01.2024 (9C_207/2023))
  • A-2315/2021 (VAT 2013-2018; discretionary assessment; decision confirmed by the Federal Supreme Court in its ruling of 19.12.2023 (9C_306/2023))
  • A-2316/2021 (VAT 2013-2018; discretionary assessment; decision confirmed by the Federal Supreme Court in its ruling of 19.12.2023 (9C_307/2023))
  • A-2321/2021 (VAT 2016-2018; discretionary assessment; decision confirmed by the Federal Supreme Court in its ruling of 19.12.2023 (9C_310/2023))
  • A-2320/2021 (VAT 2013-2018; discretionary assessment; decision confirmed by the Federal Supreme Court in its ruling of 19.12.2023 (9C_309/2023))
  • A-2310/2021 (VAT 2013-2018; discretionary assessment; decision confirmed by the Federal Supreme Court in its ruling of 19.12.2023 (9C_308/2023))
  • A-1573/2022 (VAT 2013-2016; allocation of services; decision appealed to the Federal Supreme Court)
  • A-6002/2022 (VAT (1st quarter 2006 to 4th quarter 2009), decision appealed to the Federal Supreme Court)
  • A-5485/2021 (administrative assistance (DTA CH-HU); the FSC did not accept the appeal in its decision of 19.01.2024 (2C_27/2024))
  • A-539/2021, A-546/2021 e A-548/2021 (administrative assistance (DTA CH-NL); decision appealed to the FSC)

Decisions not to enter

  • A-4015/2022 (administrative assistance (anti-fraud agreement); although the contested interim ruling is to be qualified as an (independently issued) interim ruling, it does not cause any direct and irreparable disadvantage within the meaning of Art. 115i para. 2 ZG due to the present seizure of documents and folders and is therefore not independently contestable by means of an appeal to the BVGer).

Decisions are listed chronologically by publication date.

Tax topics covered in this post:
Value Added Tax (VAT)
Treaties
International Tax
Other Taxes
Withholding Tax