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Ralf Imstepf

Roger Rohner

Effects from current case law and administrative practice

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Workshop on the occasion of the ISIS seminar of 26 September 2019 entitled "Value Added Tax. Current. Compact. Interdisciplinary.".

09/2019
The corresponding case solutions can be purchased for CHF
120.00
(introductory price)
be on sale in the shop
The case solutions and other documents can be obtained free of charge in the shop.

Case 1 (tax avoidance)

Facts

(Inspired by BVGer v. 13.3.2018 A-1487/2018 / A-1486/2018 / A-1485/2018 and BGer v. 5.10.2018, 2C_119/2017.)

Ferienhaus AG, which is entered in the register of taxpayers, holds as its sole assets two properties that it has built and which it makes available free of charge and exclusively to its sole shareholder Julius. Julius uses them for private purposes.

How is the provision to be assessed for VAT purposes?

Variant 1

The rent charged for use is 30% of the normal rent.

Does anything change in the VAT valuation?

variant 2

The rent charged for use corresponds to the annual rental value according to RS of 21.2.2008 of direct federal tax with a surcharge of 25%.

How is the provision to be assessed for VAT purposes?

Variant 3

Treuhand AG, which is entered in the register of taxpayers, is active in the classic trust business. In addition, it is the owner of two properties that it has built and which it is making available exclusively and for a symbolic price to its sole shareholder Julius. Julius uses these for private purposes.

How is the provision to be assessed for VAT purposes?

Variant 4

Treuhand AG, which is entered in the register of taxpayers, is active in the classic trust business. In addition, it is the owner of two properties which it has built and which it makes available exclusively to its sole shareholder Julius. Julius uses these for private purposes. The rent charged for this purpose corresponds to the annual rental value according to RS of 21 February 2008 of the direct federal tax with a surcharge of 25%.

Does anything change in the VAT valuation?

Variant 5

The properties are not only rented to the sole shareholder Julius, but also to third parties.

How is the provision to be assessed for VAT purposes?

Case 2 (reference tax)

Facts

Ressource Investment AG, with its registered office in Zug, was founded to acquire shares in a foreign corporation which holds mining rights abroad. Ressource Investment AG is not VAT-registered in Switzerland.

Ressource Investment AG has commissioned a foreign closely associated group company to carry out a due diligence of this foreign corporation. Ressource Investment AG will be invoiced for the corresponding costs by the foreign group company, which is also not registered for VAT purposes in Switzerland.

In 2018, due diligence services in the amount of CHF 300,000 were purchased. Of these, CHF 175,000 was invoiced and paid in 2018, CHF 100,000 was invoiced and paid in 2019 and CHF 25,000 was invoiced and paid only in 2019.

VAT VAT Imstepf Matteotti Rene Ralf Tax Tax Seminar Workshop Case Solution Switzerland zsis

How are the services provided by the foreign group company taxable? Is there an input tax deduction?

Variant 1

Ressource Investment AG will register for VAT purposes in Switzerland as of 1 January 2019, whereby it will effectively charge according to agreed fees.

variant 2

The foreign Group company will register for VAT purposes in Switzerland as of 1 January 2019, whereby it will effectively charge according to the fees received.

Case 3 (tax exemption for medical treatment)

Facts

(Inspired by BGer v. 21.8.2018, 2C_476/2017, BVGer v. 2.5.2019, A-719/2018, BVGer v. 2.5.2019, A-5966/2018, BVGer v. 10.1.2019, A-1620/2018 [all BVGer judgements not yet final])

Andrew works as a chiropractor in the canton of Bern*. He is in possession of a professional licence issued by the Canton of Berne.

*(In the following, the names of cantons are used for illustration purposes, irrespective of the actual legal situation in these cantons)

Do Andrew's services constitute tax-exempted treatment within the meaning of Article 21(2)(3) of the VAT Act?

Variant 1

Andrew works as a chiropractor in the canton of Zurich. He holds a licence issued by the Health Directorate of the Canton of Zurich to use the title of chiropractor awarded by the Conference of Cantonal Health Directors (GDK).

Do Andrew's services constitute tax-exempted treatment within the meaning of Article 21(2)(3) of the VAT Act?

variant 2

Andrew works as a chiropractor in the canton of Appenzell Innerrhoden. The canton has neither a professional licence nor a title licence. The question of whether such a licence should be introduced was never discussed in the cantonal parliament.

Do Andrew's services constitute tax-exempted treatment within the meaning of Article 21(2)(3) of the VAT Act?

Variant 3

Andrew works as a chiropractor in the canton of Aargau. The Cantonal Council has expressly decided against the introduction of a professional licence when drafting the cantonal health law. In accordance with the legislative will, the practice of chiropractors should in any case be possible without a licence.

Do Andrew's services constitute tax-exempted treatment within the meaning of Article 21(2)(3) of the VAT Act?

Variant 4

Andrew works as a doctor in the canton of Valais. He is in possession of a corresponding professional licence. In addition to his "normal" medical activity, he is also a chiropractor.

Do Andrew's chiropractor services constitute tax-exempted treatment within the meaning of Article 21(2)(3) of the VAT Act?

Case 4 (transfer of land)

Facts

Elektro Meier AG and Meier Immobilien AG (both subject to VAT) are wholly owned subsidiaries of Meier Beteiligungen AG. All companies have their headquarters in Winterthur.

In December 2018, two operational properties with a book value of CHF 2 million (including land value) will be transferred from Elektro Meier AG to Meier Immobilien AG with direct tax neutrality as a transfer of assets within the Group in accordance with Art. 61 para. 3 DBG. The publicly notarised purchase agreement is relatively rudimentary and simply contains the transfer at book values of the two properties without further details regarding land value or VAT treatment. In the VAT statement Q4/2018 the transfer is declared in the reporting procedure by Elektro Meier AG. The form no. 764 of the FTA for the reporting procedure has been signed by both parties involved.

In April 2019, the auditors will ask how the restructuring was accounted for in terms of VAT.

Follow-up question: The auditors will not further clarify the correct VAT transfer and in 2020 Meier Immobilien AG will sell the operational properties with an option to an independent third party. What are the VAT consequences and how do they affect the real estate gains tax?

CHF
120.00

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