Facts
The complainant [A.] was registered in the register of value added tax payers since 1995 and provided administrative board services to various companies. He invoiced value added tax unconditionally, based on the then-current practice of the Federal Tax Administration, which considered the activity as a board member to be an independent, value added tax-liable gainful activity.
In 2000, the Federal Court changed its case law and recognized that the activity as a board member is a non-independent, non-value added tax-liable gainful activity. [A.] then applied for a refund of the value added tax paid by him for the years 1995 to 1999.
The Federal Tax Administration rejected the application, and [A.] filed a complaint with the Federal Tax Appeals Commission, which partially upheld the complaint. The Federal Tax Administration then filed a complaint with the Federal Court, which combined the complaints and had to clarify the issue of refunding value added tax in case of unconditional payment.
Considerations
1. Principle of refund of non-debted taxes
The Federal Court established that benefits that were made due to a non-realized or subsequently lapsed reason can be reclaimed, provided that the law does not provide otherwise. This principle also applies in tax law, where the state may only claim a tax to the extent that it is provided for in the law.
2. Refund of value added tax in case of unconditional payment
The Federal Court decided that unconditional payment of value added tax precludes a refund, as the taxpayer, with the unconditional declaration and payment of the tax, unequivocally expresses that he is willing to pay the tax that he considers to be debted.
3. No refund in case of unconditional payment
The Federal Court concluded that refunding value added tax in…