Decisions of the Swiss Federal Administrative Court (CW 8 - 2023)

Overview of tax law decisions of the Swiss Federal Administrative Court published between February 20 - 26, 2023:

Judgment of 17 October 2022 (A-3472/2022): Customs; customs assessment; inadmissibility and dismissal of appeal of duty payers.
Judgment of 8 February 2023 (A-1669/2021): Customs; subsequent claim of customs duties and import tax; in the present case, the illegal import of foodstuffs is disputed insofar as the managing director of the complainant submits that no foodstuffs were found in his three restaurants (in particular in those of the complainant) which had been imported. Moreover, a third party had imported 90% of the goods and had also confirmed in each case that it assumed full responsibility for them. The BVG considers it proven that the goods were actually imported into Switzerland after being purchased abroad, in view of the repeated actions of the parties involved, which can be reconstructed on the basis of the monitoring by means of AFV as well as the statements of various persons, the type and quantity of the goods intended for various restaurants as well as the information on the invoices. The complainant does not succeed in proving the contrary. The FAC concludes that the complainant failed to make the customs declarations in connection with the imports at issue in this case. Thus, the import tax and customs claims arose at the time the goods were brought across the customs border in each case. Based on the available evidence, the individual dates of the imports can be determined. Only with regard to the default interest in the amount of CHF 183.62 is the appeal to be upheld. For the rest, the appeal is dismissed.
Judgment of 8 February 2023 (A-2063/2021): Customs; subsequent claim for customs duties and import tax; in the present case, the illegal importation of foodstuffs is disputed insofar as the complainant denies all imports charged against him except for a single importation (of 4 January 2017). In particular, he claims that the lower court did not provide complete evidence of the other imports. No (smuggled) meat was found on his premises. The complainant drove from Switzerland to Austria, often using his own car and occasionally the car of another person. In 2015 and 2016, he often drove alone, but later he was more often accompanied by other persons, usually (but not always) by a "pre-driver", who sometimes crossed the border some time after him. The task of the forerunner was to find out whether the border crossing into Switzerland was occupied or not. If the border crossing was occupied, the forerunner would look for another, just unoccupied, border crossing at which the complainant could cross the border into Switzerland with the goods purchased in Austria. The FAC considers the facts established by the lower court to be proven. Accordingly, the complainant is liable to pay customs duty if he imported the meat in this way. Due to a clerical error, the lower court overestimated the duty to be paid by the complainant by CHF 5,776. The appeal is therefore to be upheld to this extent, but is dismissed in all other respects.
Judgment of February 8, 2023 (A-2087/2021): Customs; recovery of customs duties and import tax; not yet clarified by case law is the question of whether a "pre-driver" is liable to pay customs duties. In the present context, the term "forerunner" refers to a person who drives ahead of the person bringing the goods across the border and, knowing that the goods are about to be imported, gives that person the "green light" when the border crossing is unoccupied. The group of persons liable to pay customs duties includes various persons. It must be examined in more detail whether the person driving in front is to be regarded as the person who brings the goods across the customs border (Art. 70 para. 2 let. a ZG) or has them brought into the customs territory (Art. 70 para. 2 let. b in conjunction with Art. 26 let. a in conjunction with Art. 21 para. 1 ZG). The FAC holds that the forerunner (in the constellation mentioned here) directly causes the importation of goods by directly persuading the wagon driver to cross the border. Without his intervention, the driver of the goods would not have crossed the border, or at least not at that point. In this respect, his position can be subsumed under that of the principal. According to the case law of the Federal Supreme Court, in the interest of the enforcement of the customs duty, it is necessary to draw the circle of debtors broadly in the sense that the persons economically interested in the fulfillment of the legal transaction underlying the movement of goods are liable for the customs duties. It is stated that a forerunner is liable to pay customs duties if he knows that his "OK" will result in the carrier of the goods bringing the goods across the border. The appeal is partially upheld in terms of amount and the additional claim is reduced by a marginal CHF 2,326.05. For the rest, the appeal is dismissed.

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