Facts
The Swiss Confederation, represented by the Federal Tax Administration, requested the opening of bankruptcy proceedings against [X.] (Appellant) on 23 May 2008 due to outstanding value-added tax claims. The President of the Court of the District of Interlaken-Oberhasli rejected the request on 15 August 2008. The Respondent appealed to the High Court of the Canton of Bern, Court of Appeal, 2nd Civil Chamber, and requested the reversal of the decision and the opening of bankruptcy proceedings without prior debt enforcement. The High Court opened bankruptcy proceedings against the Appellant on 27 November 2008.
The Appellant requested the reversal of the High Court's decision before the Federal Court on 24 December 2008. The Respondent had previously had the Appellant assessed for outstanding value-added tax accounts and had claimed an average of CHF 44,000 per year. However, the Appellant had never paid domestic value-added tax to the Respondent and had allowed itself to be sued, resulting in loss certificates every time.
Considerations
The Federal Court examined the admissibility of the appeal and found that it was a final decision in debt enforcement and bankruptcy matters, which constitutes a final judgment. The appeal is admissible regardless of the amount in dispute, as it is directed against a decision of the bankruptcy judge.
The Federal Court based its judgment on the facts established by the lower court. The Appellant complained about the establishment of the facts, but without explaining how the conditions for an exception under Art. 105 para. 2 FSCA are met. The Federal Court found that the Appellant had ceased payments because it was unable to fulfill its undisputed and due claims.
The Federal Court also examined the Appellant's claim for input…