Facts
The Swiss Federal Tax Administration (ESTV) filed an appeal against the decision of the Federal Administrative Court, which granted the joint-stock company A. AG an exemption from issuance stamp duty in the amount of 10,165,447 Swiss francs. The dispute was whether the company could claim the issuance stamp duty exemption of 10 million Swiss francs pursuant to Art. 6 para. 1 lit. k of the Federal Stamp Duty Act (StG).
The company had increased its share capital by offsetting it against subordinated loans (debt-equity swap) and simultaneously created a premium of 1,083,865,098 Swiss francs, which was credited to the capital contribution reserves, without derecognizing the pre-existing loss carryforward.
Considerations
The Federal Supreme Court concluded that Art. 6 para. 1 lit. k StG, in addition to the requirements of restructuring and a maximum of 10 million Swiss francs, also requires the actual derecognition of the loss carryforward. In the Court's view, this is an indispensable condition, as the legislator intended to express a specific procedure with the "elimination of existing losses".
The Federal Supreme Court stated that the loss carryforward should have been derecognized at the time the restructuring measures were recorded. Since the company failed to do so and only derecognized the loss carryforward later, it could not claim the exemption. Consequently, the Federal Supreme Court overturned the…