Decision on whether Shell (Switzerland) AG's petrol stations in the Canton of Aargau are to be qualified as permanent establishments

Facts

Shell (Switzerland) AG, headquartered in Baar (CustA), operates 28 petrol stations in the Canton of Aargau. 13 of these petrol stations belong to the company itself, but are operated by independent contractual partners (so-called "Company Stations"). The remaining 15 petrol stations are owned by the respective operators and are only supplied by Shell (Switzerland) AG (so-called "Dealer Stations"). The Tax Office of the Canton of Aargau declared the 13 "Company Stations" to be permanent establishments of Shell (Switzerland) AG as of the 2003 tax year, which would therefore be subject to limited tax liability in the canton. The appeal of Shell (Switzerland) AG against this decision was dismissed by the Federal Supreme Court.

Considerations

The Federal Supreme Court states that a violation of Art. 127 para. 3 Cst. constituting double taxation occurs if a taxable person is taxed by two or more cantons for the same tax object and for the same period. Here, the Tax Office of the Canton of Aargau is interfering with the tax sovereignty of the Canton of Zug, in which Shell (Switzerland) AG is already being taxed.

The decisive factor is whether the "Company Stations" constitute permanent establishments of Shell (Switzerland) AG. The Federal Supreme Court denies this. Although the petrol station facilities belong to the appellant, it no longer has the power of disposal over them, as the right of use belongs to the independent petrol…