Facts
The X. Pension Fund Foundation with its registered office in A./ZH aims to provide occupational pension benefits within the framework of the BVG. Y. AG, also based at the same location, is a wholly-owned subsidiary of the Foundation and manages real estate. Together, they form the value-added tax group "X. Pension Fund", which was registered in the register of taxable persons as of January 1, 1995.
The Federal Tax Administration (FTA) informed the two members about the upcoming deregistration of the group from the register of taxable persons. It justified this by stating that occupational pension institutions are excluded from participation in a value-added tax group according to Art. 16 para. 3 of the Value Added Tax Ordinance of November 27, 2009. By decision of November 21, 2011, the FTA deleted the group as of the end of 2011.
Considerations
The Federal Supreme Court examined whether Art. 16 para. 3 of the Value Added Tax Ordinance 2009 can be considered an implementing ordinance whose basis is directly derived from Art. 182 para. 2 of the Federal Constitution. It concluded that the provision in dispute exceeds the framework of a mere implementing ordinance and violates the principle of the separation of powers.
The Federal Supreme Court stated that occupational pension institutions have an area of autonomy within the framework of the statutory requirements. The outsourcing of tasks to a wholly-owned or majority-owned subsidiary does not necessarily have to be in contradiction with the main concern of Art.…