Emissions tax in the case of restructuring and contribution by a shareholder

Facts

The [X. AG] , a stock corporation with its seat in [U.] , purchased from its sole shareholder and chairman of the board of directors [A.] a 50% stake in [Y. AG] at a nominal value of CHF 50,000.--. The Federal Tax Administration (FTA) considered the purchase to be a contribution and levied an emissions tax of CHF 3,687,000.--. The [X. AG] argued that it was a restructuring exempt from the tax pursuant to Art. 6 para. 1 lit. a bis of the Federal Act on Stamp Duties (StA).

The Federal Administrative Court dismissed the appeal by [X. AG] . The [X. AG] filed an appeal with the Federal Court and requested the reversal of the Federal Administrative Court's judgment and the refund of the emissions tax already paid.

Considerations

The Federal Court examined whether the contribution was made in the course of a restructuring within the meaning of Art. 6 para. 1 lit. a bis StA and was therefore exempt from the emissions tax. It found that the term of an economic merger of companies equivalent to a merger in the StA is not further defined, but in practice is referred to as transactions that for some reason are not carried out as mergers, but have the same economic effect as a merger.

The court concluded that the contribution of the 50% stake in [Y. AG] to [X. AG] cannot be qualified as a quasi-merger, as it lacks a capital increase in the acquiring…