No Admission of Appeal by the Federal Tax Administration Due to Unlawful Choice of Legal Remedy

Facts

Parties: Federal Tax Administration (Appellant) against [A.] (Respondent).

Facts: [A.] , born in 1986, is a Swiss citizen and resides in [U.] /SG. He was naturalized in 2011 and, due to his age, was no longer eligible for military service recruitment but was subject to the military service substitute tax. He paid this tax from 2012 to 2016. For the year 2018, he was billed a military service substitute tax of CHF 1,404.-- based on new legal provisions. [A.] filed an objection, which was dismissed. The appeal against this decision was upheld by the Administrative Recourse Commission of the Canton of St. Gallen, which found a violation of Art. 29 para. 2 Cst. and an unlawful retroactive effect of the law amendment.

Proceedings: The Federal Tax Administration (FTA) filed an appeal in public law matters with the Federal Supreme Court, which had to decide on the admissibility of the appeal.

Considerations

The Federal Supreme Court first examined the admissibility of the appeal. Pursuant to Art. 86 para. 1 lit. d FSCA, the appeal against decisions of the last cantonal instances is admissible, provided that the appeal to the Federal Administrative Court is not admissible. Following the amendment of the MSETA of March 16, 2018, the appeal to the Federal Supreme Court can only be filed against the decision of the last cantonal instance in accordance with the Federal Supreme Court Act. However, the FTA had filed an appeal with the Federal Supreme Court before exhausting the cantonal instances, which is inadmissible under the new law.

The Federal Supreme Court found that the FTA, as a supervisory authority in the area of military service…