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VAT/Customs

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 24 September 2020 entitled "Value Added Tax. Current. Compact. Interdisciplinary."

09/2020
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 succession)

Situation (Inspired by BGer v. 21.2.2020, 2C_923/2018.)

The taxable Taxi Zeus GmbH aims at the commercial transport of goods and persons. Marcus is the sole shareholder and acts as managing director.

On 1 May 2019, Taxi Zeus GmbH concludes a purchase agreement with Taxi Jupiter GmbH, whose sole shareholder is also Marcus. According to the contract, all five taxis of Taxi Zeus GmbH, including taxi/operating licences, are to be transferred to Marcus GmbH on 1 July 2019 against payment of the market price. The aim is to transfer "the taxi business" from Taxi Zeus GmbH to Taxi Jupiter GmbH.

After transfer of the taxis (including permits), Taxi Zeus GmbH will be declared bankrupt in August 2019. In September 2019, the company is deleted from the commercial register.

The FTA would like to make the outstanding VAT debts of Taxi Zeus GmbH amounting to CHF 50,000 available from Taxi Jupiter GmbH.

Is she allowed to do that? Based on what legal basis?

Variant 1

Taxi Zeus GmbH is contractually obliged to transfer only three of its five taxis (including permits) to Taxi Jupiter GmbH. Taxi Zeus GmbH continues its taxi business with the remaining two taxis.

After transfer of the taxis (including permits), Taxi Zeus GmbH will be declared bankrupt in August 2019. In September 2019, the company is deleted from the commercial register.

The FTA would like to make the outstanding VAT debts of Taxi Zeus GmbH amounting to CHF 50,000 available from Taxi Jupiter GmbH.

Is she allowed to do that? Based on what legal basis? To what extent?

variant 2

Taxi Zeus GmbH sells a taxi (without permits) to Juno Garagen AG. Taxi Zeus GmbH continues the taxi business with the remaining four taxis. Juno Garagen AG "slaughters" the taxi as a spare parts warehouse.

The FTA would like to make the outstanding VAT debts of Taxi Zeus GmbH amounting to CHF 50,000 available from Juno Garagen AG.

Is she allowed to do that? Based on what legal basis?

Case 2 (import with declaration of subordination)

Facts

Bekledingen BV has its registered office in Utrecht (NL). It sells garments from Holland to various countries, including Switzerland. The textiles are sent by post.

Bekledingen BV has an annual turnover of CHF 3 million. CHF 250,000 of this is for deliveries to Switzerland, of which CHF 200,000 is for deliveries of goods with a sales price of more than CHF 65.

What are the risks and opportunities for Bekledingen BV from a VAT perspective in Switzerland?

Does anything change from the moment when deliveries of goods with a sales price of less than CHF 65 exceed the annual turnover limit of CHF 100,000?

Case 3 (Binding effect of rulings)

Answer in the following constellations whether the information provided by the FTA has binding effect!

Facts

Fishmonger Henry plans to sell his Siamese fighting fish (ornamental fish). On 1 July 2018, he will therefore make a general telephone enquiry to the FTA to find out whether the sale of ornamental fish is taxable at a reduced or normal rate. The employee incorrectly informs him by telephone that ornamental fish are generally subject to the reduced rate.

Variant 1

Fishmonger Henry plans to sell his Siamese fighting fish (ornamental fish). On 1 July 2018, he will therefore generally ask the FTA by e-mail whether the sale of ornamental fish is taxable at a reduced or normal rate. A few days later he receives an answer by e-mail (which is materially incorrect). The sale of ornamental fish should always be subject to the reduced rate.

variant 2

Fishmonger Henry plans to sell his Siamese fighting fish (ornamental fish). On 1 July 2018, he will therefore send a letter to the FTA asking whether the sale of his Siamese fighting fish can be taxed at a reduced or normal rate. A few days later he receives a reply letter (which is materially incorrect). His fighting fish were to be taxed at the reduced rate.

Variant 3

Fishmonger Henry sells his Siamese fighting fish (ornamental fish) on 1 May 2018 at a reduced tax rate. On 1 July 2018, he asks the FTA by letter whether the sale of his Siamese fighting fish is taxable at the reduced or the standard rate. A few days later he receives a reply letter (which is materially incorrect). His fighting fish were to be taxed at the reduced rate.

Variant 4

Fishmonger Henry sells Siamese fighting fish (ornamental fish) at a reduced tax rate on 1 January 2018. So far he has no experience in connection with the trade of ornamental fish. After a friend points out to him that ornamental fish are actually taxed normally, he asks the FTA by letter on 1 July 2018 whether the sale of his Siamese fighting fish is taxable at the reduced or normal rate. A few days later he receives a reply letter (which is materially incorrect in content). His fighting fish were to be taxed at the reduced rate.

Variant 5

Fishmonger Henry always has the tax lawyer Magnus check with the FTA before he sells his fish whether the standard or reduced tax rate applies. So far he has received the information that his Siamese fighting fish (ornamental fish) are taxable at the standard rate. On 1 July 2018, tax attorney Magnus, again at Henry's instigation, will send a letter to the FTA asking whether the sale of his Siamese fighting fish is taxable at the reduced or normal rate. A few days later he receives a reply letter (which is materially incorrect). His fighting fish were to be taxed at the reduced rate.

Variant 6

Fishmonger Henry received a ruling on 1 July 2005 that the fish (farmed salmon) he was selling at the time was taxable at 2.4%. In the meantime a lot has happened to Henry. In addition to the farmed salmon, he sells a small salmon that he breeds, which cannot be eaten, but is kept by enthusiasts as an ornamental fish.

Case 4 (acting in the name and on behalf of another person)

Facts

Telco AG is based in Germany and aims to operate chargeable service numbers which it offers its customers for their telephone services. It is registered in Switzerland for VAT purposes.

Covid Help GmbH, based in Oberehrendingen (AG), advises companies throughout Europe in financial difficulties by telephone on the conditions and possibilities for taking out Covid loans and also helps them to find and fill out the relevant application forms online.

Telco AG provides Covid Help GmbH with corresponding service numbers that are subject to charges. Telco AG charges the companies using the service numbers the corresponding fees. Part of the fees is retained as compensation for the operation of the service numbers, the rest (90% of net sales) is passed on to Covid Help GmbH. On its invoices, Telco AG refers to the fees for the use of the service numbers as "service of other providers", with a footnote indicating how the holders of the service numbers can be identified.

Covid Help GmbH advertises with its service numbers on its website and in advertising mails.

How are the services provided to be assessed for VAT purposes?

CHF
120.00

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