Dismissal of the appeal by the Federal Tax Administration against the decision of the Federal Administrative Court regarding the annulment of the appeal decision and the remittal of the case for material examination

Facts

The Federal Tax Administration (FTA) conducted a VATA audit at [X.] , owner of the sole proprietorship "[X.] ", and found that the accounting was deficient. The FTA then issued a "Notice of Assessment No. yyy / Ruling" and requested [X.] to pay VATA in the amount of CHF 16'224.--. [X.] lodged an appeal, which was rejected by the FTA. The Federal Administrative Court annulled the appeal decision and remitted the case to the FTA. The FTA filed an appeal with the Federal Court.

The FTA had granted [X.] , as owner of the sole proprietorship, retroactive approval as of December 19, 2006, for the settlement of VATA according to received consideration. However, [X.] had not fulfilled his accounting and payment obligations for the accounting periods of the fourth quarter of 2006 to and including the fourth quarter of 2009, which is why the FTA invoiced a provisional tax amount of CHF 38'000.--.

Considerations

The Federal Court examined whether the FTA was authorized to design the "Notice of Assessment No. yyy" as a ruling. It found that the Notice of Assessment is not further specified in the law and represents a legal institution sui generis. The practice and doctrine qualify the Notice of Assessment as a surrogate for a ruling.

The Federal Court considered that the FTA may not systematically design the Notice of Assessment as a ruling, but only under special circumstances. It found that the lower court had rightly considered that the objective violation of Art. 98 VATA does not in itself…