Rejection of the Appeal against the Withholding Tax Claim

Facts

[X. AG] , headquartered in Lucerne (the Appellant), decided at its Annual General Meeting on 18 December 2007 to distribute a dividend of CHF 235,000 for the 2006 financial year. The originally set due date of 30 June 2008 was subsequently postponed several times, the last time to "presumably" 31 May 2010. The Swiss Federal Tax Administration (ESTV) took the view that the dividend became due at the latest on 31 May 2010 and that the withholding tax claim in the amount of CHF 82,250 arose at that time. The Appellant disputed this and argued that the due date would have had to be set by a further General Meeting. The Federal Administrative Court dismissed the Appellant's appeal.

Considerations

The Federal Supreme Court confirmed the decision of the Federal Administrative Court. It stated that the rules on withholding tax form a comprehensive system to generally determine the due date and thus the incurrence of the withholding tax claim. If the General Meeting did not decide on a due date, the dividend becomes immediately due under Art. 21 para. 3 of the Withholding Tax Ordinance (VStV), whereby the 30-day deadline for payment of the tax claim also begins to run.

In the present case, the General Meeting of 25 March 2009 had postponed the due date to "presumably" 31 May 2010. Since no further General Meeting was held by that date to set a new date, the dividend became due on 31 May 2010. The subsequent…