Refund of Withholding Tax Paid in Error

Facts

A. AG, a company in the shipping, shipbuilding and ship trading sector, paid an invoice from the Federal Tax Administration (FTA) for withholding tax in the amount of CHF 22,284.45 on 14 June 2012. The FTA had levied this withholding tax based on a tax audit, without, however, issuing a formal decision. A. AG later requested the FTA to issue a contestable decision in order to obtain a refund of the withholding tax. However, the FTA did not act on this request. The Federal Supreme Court upheld the appeal of A. AG and remanded the case to the FTA for a substantive examination of the refund request.

Considerations

The Federal Supreme Court stated that according to Art. 12 para. 1 of the Withholding Tax Ordinance (WTO), taxes and interest paid that were not determined by a decision of the FTA shall be refunded as soon as it is established that they were not owed. Contrary to the view of the lower instance, the unconditional payment of an invoice from the FTA cannot be qualified as a surrogate for a decision that would preclude a refund. The purpose of Art. 12 para. 1 WTO is to enable the refund of taxes paid in error if no…