Facts

On 20 April 2001, the 2nd Public Law Court of the Federal Court handed down a judgment in case 2A.247/2000. The facts of the case are as follows: company [A.], Rechtsanwälte, had been registered in the register of persons liable to value-added tax (VAT) since the beginning of 1995. For the tax periods 1/95 to 3/96, the company filed VAT returns with the following note: « VAT-exempt services were invoiced to foreign clients because they were not willing to comply with the reporting obligations of the Federal Tax Administration (FTA) ». The company also stated that the VAT invoiced to foreign clients was not included in the VAT returns and had been withheld.

On 15 November 1996, the company informed the FTA that it was paying the disputed VAT amount of 1 franc for the tax periods in question, with the reservation that this amount was not due and would be claimed as soon as the VAT return for exported services could be made without violating the lawyers' professional secrecy.

On 6 October 1997, the FTA decided that the services provided by company [A.] to recipients abroad were subject to VAT, unless the company was willing to communicate the name and address of the recipients with the prior agreement of the FTA. The company appealed against this decision, requesting that the FTA set up a procedure that would allow it to benefit from the VAT exemption for exported services without violating professional secrecy.

On 1 September 1999, the FTA rejected the appeal, considering that the services provided by the company to recipients abroad were subject to VAT, unless the company communicated the name and address of the recipients. The company then filed a complaint with the Federal Commission of Appeal in Tax Matters, which partially admitted the complaint, considering that the company had to communicate the place of residence or seat of the recipients abroad, but could anonymize the name and address of the recipients, except for the initials.

Considerations

The Public Law Court examined the applicable legal provisions, in particular Article 16 of the Federal Law on Value-Added Tax (VATA), which provides that proof of the export of services must be provided by the taxpayer. The Court considered that communication of the place of residence or seat of the recipients abroad was necessary to determine whether the services were exempt from VAT, but that anonymization of the name and address of the recipients, except for the initials, was sufficient to preserve the lawyers' professional secrecy.

The Court also examined the provisions of the Federal Law on Data Protection and considered that communication of the personal data of the recipients abroad was not necessary to…