Dismissal of the Appeal against Administrative Assistance in Tax Matters

Facts

The appellant, [A.] , filed an appeal against the final ruling of the Federal Tax Administration (FTA) of December 17, 2020, which ordered the provision of administrative assistance regarding the bank information requested by the Austrian authorities concerning [A.] . The FTA had acted on the basis of an administrative assistance request from the Austrian authorities dated February 16, 2017, which was based on Article 26 of the Agreement between Switzerland and Austria on the Avoidance of Double Taxation with Respect to Taxes on Income and Wealth (DTA CH-AT).

[A.] argued that she had not been registered in Austria since 2008 and therefore no longer had any tax liability in Austria. She claimed that the disclosure of data to the Austrian authorities would be a "fishing expedition" and that Article 26(1) of the DTA CH-AT was only applicable to individuals who were resident in one of the two contracting states.

The Federal Administrative Court dismissed the appeal, and [A.] appealed to the Federal Supreme Court.

Considerations

The Federal Supreme Court examined its jurisdiction and the admissibility requirements and concluded that the appeal was admissible if a legal question of fundamental importance was at stake or if there was a particularly significant case within the meaning of Article 84(2) of the FSCA.

The appellant submitted several questions to the Federal Supreme Court, which she considered to be of fundamental importance. She argued that it was a matter of principle as to whether data could be disclosed from 2012 onwards if the person concerned could prove that they had not had a residence in Austria for the tax periods 2012 to 2015 and Austria therefore had no tax jurisdiction.

However, the Federal Supreme Court found that this question had already been clarified in its case law and that the determination of the tax residence of the person concerned in an international context was a material question that was not for the FTA to clarify in the context of the administrative assistance procedure, but rather fell within the…