Dismissal of the appeal against the withholding tax claim of the Federal Tax Administration in bankruptcy proceedings

Facts

This decision of the Swiss Federal Supreme Court concerns a dispute over the procedure to be followed to challenge a withholding tax claim of the Federal Tax Administration in the context of bankruptcy proceedings.

The bankruptcy estate of G. (Switzerland) SA contested the withholding tax claim filed by the Federal Tax Administration in the bankruptcy proceedings. The bankruptcy estate considered that the Federal Tax Administration should have brought an action before the civil judge who had pronounced the bankruptcy within 10 days of the publication of the schedule of claims, in accordance with Article 250(1) of the Federal Act on Debt Collection and Bankruptcy (DEBA). The Federal Tax Administration, on the other hand, argued that, according to Articles 41 et seq. of the Federal Act on Withholding Tax (WTHA), only the administrative authorities and courts are competent to rule on the existence of its claim.

Considerations

The Federal Supreme Court dismissed the appeal of the bankruptcy estate. According to established case law, when the law provides for a special instance to judge the existence of a public law claim, the bankruptcy judge is not competent to deal with it in the context of the contestation of the schedule of claims. He must declare himself incompetent and refer the parties to the special jurisdiction, whose decision will be binding for the schedule of claims.

In the present case, Articles 41 et seq. of the WTHA provide for a special procedure, with a formal decision, a claim and an administrative appeal to the Federal Supreme Court, to…