Facts
The Federal Tax Administration (FTA) issued a supplementary invoice to [X.] on 15 December 1998 for CHF ... for the period from the first quarter of 1995 to the fourth quarter of 1996. The taxpayer lodged an appeal on 29 January 1999 and recognized the calculation method chosen by the FTA and the estimation of construction industry own consumption on 21 December 2001, but reserved the right to include construction interest in the tax base.
The FTA issued supplementary invoices for the period from the first quarter of 1995 to and including the fourth quarter of 2000 and for the first two quarters of 2001 on 22 October 2001. The taxpayer paid these invoices without withdrawing the reservation. On 13 April 2005 and 23 August 2005, the taxpayer requested a refund of the overpaid (own consumption) taxes for the years 1995 to 2004.
The FTA rejected the refund request, as the taxpayer had implicitly withdrawn the reservation. The Federal Administrative Court overturned the appeal decision and referred the matter back to the lower court for a new appeal decision.
Considerations
The Federal Court examines the jurisdiction and the prerequisites for admission of its own motion. The appeal is directed against a decision of the Federal Administrative Court in a matter of public law and can therefore be challenged by an appeal in public law matters.
The Federal Court applies the law of its own motion and examines the objections raised. The FTA complains that the lower court has obviously established the relevant facts incorrectly. The lower court has established that the taxpayer had maintained the reservation raised on 21 December 2001 and furthermore assumed that the reservation had also covered foreign capital interest in addition to own capital interest.
The Federal Court finds that the…