Decisions of the Swiss Federal Administrative Court (CW 9 - 2020 )

Overview of the tax law decisions of the Swiss Federal Administrative Court published in the week of 24 February - 1 March 2020.

Judgment of 11 March 2019 (A-1211/2018): Decision reversed by BGer by judgment of 29 January 2020 (2C_350/2019) cf. our contribution of 23 February 2020.
Judgment of 11 March 2019 (A-1359/2018): Decision reversed by BGer with judgment of 29 January 2020 (2C_348/2019) cf. our contribution of 23 February 2020.
Judgment of 11 March 2019 (A-2187/2018): Decision reversed by BGer by judgment of 29 January 2020 (2C_402/2019) cf. our contribution of 23 February 2020.
Judgment of 17 February 2020 (A-5578/2019): Radio and television reception fees; admissibility or constitutionality of reception fees under the RTVA; dismissal of the appeal lodged by the party liable to pay the levy.
Judgment of 19 February 2020 (A-2273/2019): VAT; secession; subjective tax liability; joint and several liability (2011-2014). In 2012, X AG had carried out a retroactive spin-off under the FusG with retroactive effect from 1 January 2013 of a part of its operations to the newly registered and now competing A. (spin-off plan/articles of association of Q1 and Q2, HReg entry in Q3). The FTA entered A. in the VAT register a few days earlier. After a VAT control, the FTA demanded that the X. AG MWST from the spun-off business. It was disputed whether the sales from Q2/2012 of X. AG, i.e. who was to be considered the service provider. The external appearance is decisive here and the FTA has not come across any bills that would have been for the newly founded A. Accordingly, the FTA has rightly assigned the sales or services to X. AG. Also the attempt of the X. AG to prove a proxy relationship has failed. Accordingly, the FTA was right to deduct the VAT from the disputed transactions at X. AG. Rejection of the taxpayers' complaint.
Judgment of 19 February 2020 (A-601/2019 and A-606/2019): VAT; tax avoidance (2009 to 2015); (foreign) art holding structure similar to "aircraft cases", which generated revenue exclusively from the rental of its works of art to the beneficial owner. The works of art rented in each case were inserted in the relocation procedure. The main issues at stake were (i) whether the company was engaged in business activities, which was found to be the case, and (ii) whether there was tax avoidance. The SNB has affirmed this, while acknowledging that there may also have been reasons outside tax law for having the art collection held by a company. However, this is not relevant. "The only decisive factor for VAT purposes [with regard to the objective criterion of tax avoidance] is whether there were reasons other than tax savings for declaring the tax to VAT. This is to be denied here. On the basis of the facts available, it can be assumed that the sole purpose of VAT registration was to benefit from the right of deduction. In addition, there are no apparent business or economic reasons for the complainant's registration for VAT". Finally, the SNB also denied the protection of legitimate expectations from an earlier tax audit, in which only an undercharged rent was offset.