Facts
The Federal Tax Administration (FTA) conducted a value added tax (VAT) audit of the Swiss Federal Railways SBB (taxpayer) at the end of 2019/beginning of 2020, covering the tax periods from 2013 to 2018. During a meeting, the question arose whether a subsequent charge of CHF y had been made "in accordance with the tax period". Initially, the FTA considered a "reallocation" from the first assessment notice (24 November 2020, tax period 2013) to the second assessment notice (12 March 2021, tax periods 2014–2018), but later refrained from doing so. The FTA subsequently revisited the open issue and demanded that the "reallocation" be carried out before the two assessment notices became final. In a letter dated 11 August 2022, the FTA acknowledged that the second assessment notice had become final, as the taxpayer had accepted it without reservation. Nevertheless, the FTA intended to include the definitive input tax correction "by way of reconsideration" in the final second assessment notice. The taxpayer objected to this intention both promptly and in the appeal procedure and ultimately in proceedings before the Federal Administrative Court. The Federal Administrative Court ruled in favour of the taxpayer (Judgment A-3835/2023 of 15 May 2024). The FTA appealed against this judgment to the Federal Supreme Court in public law matters, which dismissed the appeal.
Considerations
The Federal Supreme Court confirms in its decision the numerus clausus of grounds for review in tax law, in particular in VAT law. This principle follows from the strict legality principle pursuant to Art. 127 para. 1 Cst., which is enshrined as a constitutional individual right in tax law. The Federal Supreme Court emphasises that although the legality principle in tax law is strictly applied, a binding effect on the authority may arise if a binding ruling has actually been issued by the tax authority and the conditions for protection of legitimate expectations are met. Nevertheless, the principle of the numerus clausus of grounds for review for final administrative acts and decisions remains unaffected.
In VAT law, the legislative objective of enhanced legal certainty is added. This objective was pursued with the reform of VAT law in 2009 to ensure transparency, simplification of the system and the greatest possible legal certainty for taxpayers. The legislative intent aimed to remedy the "crise du principe de la bonne foi" identified under the pre-revised law. Against this backdrop, it is impossible for the FTA or the taxpayer to revisit a final assessment notice, administrative act or appeal decision by way of reconsideration or revocation. This applies both to the harmonised tax law of the Confederation, cantons and municipalities and to VAT law.
In VAT law, an assessment notice is qualified as a substitute for an administrative act, which, although not subject to a specific appeal period, becomes final upon written acceptance or unconditional payment. The function of the assessment notice is to establish the existence and amount of the tax claim. It is subject to the extraordinary legal remedies of revision, clarification and correction pursuant to Art. 85 VATA 2009. However, these legal remedies are exhaustively regulated and…