Overview of tax law decisions of the Swiss Federal Administrative Court published between February 13 - 19, 2023:
- Ruling ofJanuary 16, 2023 (A-3279/2019): Turnover tax; transfer of shareholdings within the group, granting of performance share units (PSU) or restricted stock units (RSU) to employees: The purchase of an additional share of 14.9% in a foreign participation, in which the complainant (Swiss securities dealer) previously indirectly held 25%, from a foreign group company in which the complainant indirectly holds 100% qualifies as a transaction exempt from the turnover tax. The transfer of PSUs or RSUs by a securities dealer to its employees does not take place free of charge but in an exchange relationship. It must be assumed that there is a close connection between the issuance of PSUs or RSUs and the performance of work by the beneficiaries thereby tied to the company, since the PSU or RSU plans expire if the employees leave the company. For this purpose, the consideration of the employees does not have to be explicitly quantified or consist of a monetary amount. The transfer of ownership of the complainant's shares (exercise of employee options) is subject to the turnover tax. The appeal is partially upheld insofar as it concerns the transfer of shareholdings within the group.
- Judgment of January 27, 2023 (A-1138/2021): Company fee for radio and television; The complainant claims that no radio or television could be consumed in his company from March to May 2020, due to the closure of all restaurants ordered by the Federal Council to combat the COVID-19 pandemic. Accordingly, the annual fee should be reduced by 2 months. The BVGer against it holds, the enterprise tax for radio and television is preconditionless and without object owed. It is a "device-independent levy". The effects of the lockdown are taken into account, at least indirectly, in the calculation of the corporate levy by means of a sales step tariff. Dismissal of the appeal.
- Judgment of January 31, 2023 (A-947/2022): Withholding tax (levying); In the present case, a global view of services and considerations in connection with a sale of an investment (viewed in isolation at a lower price) is applied. Overall, the existence of a hidden profit distribution is to be denied. Appeal upheld.
- Judgment of 19 January 2023 (A-4666/2020): Import duties; post-clearance recovery; the complainant was rightly recorded as jointly and severally liable for the reduced import duties. However, for the products at issue here, which originate from free zones but do not meet the requirements for duty exemption, and whose importation takes place at a time when Switzerland is fully supplied with fresh vegetables, the reduced out-of-quota duty rates are to be applied. Partial dismissal of the appeal and referral back to the lower court.
- Judgment of February 7, 2023 (A-2823/2020): Withholding tax on monetary benefits; The legal qualification of the benefits received by the managing director as a monetary benefit relevant under withholding tax law, in particular in the form of a hidden distribution of profits, is disputed. In essence, the complainant claims that the benefits paid were in fact compensation to the managing director for his services in setting up the company. The Federal Administrative Court points out that if the amounts paid out had been compensation - however qualified under civil law - for the commitment of the managing director, this should have been shown accordingly in the complainant's accounts. Only in one point, when an amount of Fr. 435.27 is recognized as a business-related expense, the complainant prevails. Compared to the total amount in dispute of Fr. 37,126.95, this amounts to only 0.4 %. Consequently, the appeal is partially upheld, although the costs of the proceedings are not reduced, as the complainant is mainly unsuccessful.
Decisions in the area of administrative assistance (incl. updates/re-publication):
Decisions are listed chronologically by publication date.
