On September 13, 2022, the FTA published a notice regarding limitation periods for the claim for refund of withholding tax in case of informal rejection (without issuance of a formal decision) of refund applications.
Anyone claiming a refund of withholding tax must apply for it in writing to the competent authority (Art. 29 para. 1 VStG). According to Art. 29 para. 2 VStG, the application can be made at the earliest after the end of the calendar year in which the taxable service becomes due. In international relations, the application for refund can generally be made as of the due date of the taxable performance.
According to Art. 32 para. 1 VStG and Art. 27 para. 1 StADG, the claim for refund expires if the application is not filed within three years after the end of the calendar year in which the taxable service became due. This is a forfeiture period which, in principle, can neither be interrupted nor extended. The cases of application of Art. 32 para. 2 VStG or Art. 27 para. 2 StADG remain reserved.
The VStG and the StADG do not contain any provisions on the limitation period for the claim for restitution. In this respect, a relative limitation period of 5 years applies analogously to Art. 17 para. 1 VStG. This limitation period begins to run when the claim for restitution arises.
In analogous application of Art. 17 para. 3 ITA, the statute of limitations is interrupted by any action of the person entitled to restitution that is aimed at asserting the restitution claim. For example, the filing of the claim for restitution interrupts the limitation period, whereby a new limitation period of 5 years begins to run on the day following the filing. The same applies to the subsequent submission of requested information and/or documents in connection with the submitted refund claim, as this is also an act of the refund claimant aimed at asserting its refund claim. However, since the refund claim can only ever be asserted by the person entitled to a refund, acts of the FTA, such as the informal rejection (without issuance of a formal decision) of a refund claim or the request for information and documents, are not relevant in this context and do not interrupt the limitation period.
This notice is effective immediately. Assurances to the contrary given by the FTA in individual cases must be assessed in the light of the constitutionally guaranteed principle of good faith. It is the responsibility of the person entitled to a refund to provide proof of this.
The announcement is available here .
