Dismissal of the appeal by the French company against the refusal to refund the withholding tax levied on securities income held in the context of index arbitrage activities

Facts

The French company X. has a branch in Zurich registered in the commercial register. In 2008 and 2009, the company requested a refund of the withholding tax levied on the income from securities held by its Swiss branch in the context of index arbitrage activities. The Federal Tax Administration only partially granted these requests. The company appealed against this decision, which was confirmed by the Federal Administrative Court and then by the Federal Supreme Court.

Considerations

4. The dispute concerns the validity of the company's claims for a refund of the withholding tax. The existence of tax evasion must only be examined if the conditions for the right to a refund under the law are met. 5. Regarding Art. 24 para. 3 WTA, the Federal Supreme Court confirms the case law according to which the right to a refund of withholding tax of a foreign company based on the Swiss establishment is subject to the condition that the yield belongs to the business assets. The securities in question do not belong to the business assets of the Swiss branch, as they were acquired and financed by the company's headquarters in France in the context of "back-to-back"…