Facts
On 25 January 2018, the Spanish tax authority requested the Swiss Federal Tax Administration (FTA) to obtain information from the Swiss company A. SA regarding the contracts concluded with the Brazilian company B. s/s Limitada, to which the taxpayer B. had transferred his image rights. The FTA ordered A. SA to provide these documents and to inform B. of the administrative assistance procedure opened.
A. SA objected to the transmission of the information, invoking business secrecy. After receiving the documents, the FTA informed A. SA and B. of the information it intended to transmit to the Spanish authority. These documents included a contract linking A. SA, B. s/s Limitada and other Brazilian companies of the A. group.
By decision of 30 October 2018, the FTA granted administrative assistance to Spain. A. SA appealed against this decision. The Federal Administrative Court found the decision to be null and void, on the grounds that the FTA had seriously violated the right to be heard of the Brazilian companies by not informing them of the procedure.
Considerations
The Federal Court dismisses the FTA's appeal. It considers that the FTA was not obliged to inform the Brazilian companies ex officio of the existence of the administrative assistance procedure, since their standing to appeal was not clearly evident from the file.
According to the Federal Court, Art. 14 para. 2 of the Federal Act on International Administrative Assistance in Tax Matters only requires the FTA to inform…