Dismissal of appeal due to mootness following termination of bankruptcy proceedings for lack of assets

Facts

Parties and procedural history:

The taxpayer ([A. GmbH] in liquidation) appealed with a notice of appeal dated 31 January 2020 against the decision on objection of the Swiss Federal Tax Administration (SFTA) dated 13 December 2019, which required it to pay withholding tax on monetary benefits for the tax period 2012 in the amount of CHF 243,065.20. The SFTA largely confirmed the claim. The Federal Administrative Court conducted the proceedings A-648/2020.

On 17 March 2020, the Cantonal Court of SocRA opened bankruptcy proceedings against the taxpayer. The managing director filed a reply on 6 April 2020 and a rejoinder on 16 June 2020 with the Federal Administrative Court without mentioning the bankruptcy proceedings. On 3 August 2022, the Federal Administrative Court issued an interim order requiring the taxpayer to withdraw the appeal CO prove the managing director's authority to act. The taxpayer filed an appeal against this with the Federal Supreme Court (2C_455/2022), which was not admitted due to failure to comply with the deadline.

With a decision dated 6 December 2022, the Federal Administrative Court dismissed the appeal as moot since the taxpayer had no authority to act after the bankruptcy proceedings were opened and the bankruptcy proceedings had been terminated for lack of assets on 18 August 2021. The taxpayer then filed an appeal in public law matters with the Federal Supreme Court on 20 January 2023, requesting the continuation of the proceedings and a declaration of the legal force of the disputed claim and the authority to act.

Considerations

1. Admissibility requirements and scope of review:

The Federal Supreme Court admitted the appeal since the admissibility requirements under Art. 82 lit. a, Art. 83 e contrario, Art. 86 para. 1 lit. d and para. 2, Art. 89 para. 1, Art. 90 and Art. 100 para. 1 FSCA were met. It reviewed federal legislation ex officio with full cognition (Art. 106 para. 1 and Art. 95 lit. a FSCA) and was not bound by the arguments of the lower court (substitution of grounds). The taxpayer had not sufficiently substantiated its constitutional rights, so these were not reviewed (Art. 106 para. 2 FSCA).

2. Authority to act after bankruptcy proceedings were opened:

The taxpayer's authority to act transferred to the bankruptcy administration upon the opening of bankruptcy proceedings on 17 March 2020 (Art. 240 DEBA). The managing director acted without authority from that point on, as he neither informed the bankruptcy administration nor obtained its approval. The submissions filed by the managing director (reply and rejoinder) were therefore not binding on the taxpayer (Art. 38 para. 1 CO). The taxpayer contested this without challenging the lower court's findings as arbitrary (Art. 105 para. 2 FSCA).

3. Effects of the bankruptcy proceedings on the case:

The opening of bankruptcy proceedings resulted in the taxpayer losing its capacity to litigate, and the bankruptcy administration became responsible for managing the bankruptcy estate. The suspensive effect ordered by the Federal Supreme Court on 30 September 2020 applied only to enforcement measures, not to the validity of the bankruptcy proceedings…