Overview of tax law decisions of the Swiss Federal Administrative Court published between February 27 - March 5, 2023:
- Ruling of February 16, 2023 (A-1954/2022): Withholding tax 2017 and 2018 (collection); A AG subleased part of its office property to F AG. F AG is 100% controlled by E AG. The sole shareholder of A AG as well as the majority shareholder of E AG (and thus indirectly of F AG) is B, a resident of a non-DTA country. Since 2013, A AG has not received any sublease from F AG, which is in financial distress. The sublease receivables were even written off entirely in 2018. The waiver of sublease income by A AG vis-à-vis F AG meets the criteria of a pecuniary benefit. The court leaves it open to answer the question of the beneficiary of the benefit. In particular, in the present case, a reorganization measure can also be considered, in which, in application of the triangular theory, not F AG would be the beneficiary of the waiver of the sublease income, but B resident in a non-DBA country. Since the restitution claim cannot be clarified without further ado and at least serious doubts exist, the notification procedure does not apply. Accordingly, the question of benefit entitlement must be clarified in the ordinary refund procedure. Dismissal of the taxpayer's appeal.
Decisions in the area of administrative assistance (incl. updates/re-publication):
Decisions are listed chronologically by publication date.