In its ruling 9C_37/2023 of June 11, 2024 (see our article ), the Federal Supreme Court addressed, among other things, the question of whether or not the tax expense should be taken into account in the cost base when applying the cost-plus method in the context of Art. 58 para. 3 DBG.
The Federal Supreme Court came to the conclusion that an interpretation of Art. 58 para. 3 DBG shows that the recorded and accrued taxes must be included in the cost base. At the same time, it held that Art. 58 para. 3 DBG is a provision of purely unilateral law that is not designed for international situations.
In its statement of October 8, 2024, the FTA now informs that this ruling of the Federal Supreme Court does not change the recently clarified practice published in the FTA's Q&A on the cost-plus method, according to which the tax expense is not to be included in the cost base in international situations (see here).
In the opinion of the FTA, the ruling of the Federal Supreme Court 9C_37/2023 of June 11, 2024, which goes beyond the scope of application of Art. 58 para. 3 DBG, has no precedential effect. The practice applied by the Federal Supreme Court in this ruling to form the cost base is not in line with the OECD Transfer Pricing Guidelines and is not applied by the FTA in international situations. Therefore, the FTA's practice for intra-group transactions in an international context remains unchanged and non-operational costs such as taxes are still not included in the cost base.
The entire FTA statement is available here.
