Facts
The [X. AG] , formerly [A. AG] /[B. SA] , imported fruit juice concentrates from Germany and sold them to Swiss producers. Following a revision in May 1997, the Federal Customs Administration came to the conclusion that the concentrates were to be classified under tariff number 2106 and not under number 2009. As a result, a customs duty difference was subsequently claimed. The [X. AG] requested the Federal Court to annul the decision of the Federal Customs Appeals Commission.
The [B.] group was restructured at the end of the 1990s. The [X. AG] was renamed [X.] Old AG and the [B.] Holding AG absorbed the two subsidiaries. The [B.] Holding AG took over the rights and obligations of the companies in liquidation and the [X. AG] was newly established.
The lower court came to the conclusion that the [X. AG] is liable for the disputed customs debts, as it had gained an unlawful advantage due to the non-payment of the disputed duties through the restructuring.
Considerations
The Federal Court examined the admissibility of the administrative court appeal and came to the conclusion that it is admissible insofar as it concerns the liability of the [X. AG] for the disputed customs debts. However, the tariff classification of the goods is not subject to review.
The court applied federal law ex officio and examined the question of whether the [X. AG] is liable for the disputed customs debts. It came to the conclusion that the [X. AG] has directly or indirectly benefited from the advantage through the restructuring, but this cannot be proven with sufficient certainty.
The court also discussed the issue of tax succession…