Subjective VAT liability of a law partnership and personal liability of a former partner; remittal for allocation of turnover

Facts

Parties and procedural history: The appellant (a professor and attorney, represented by attorney Dr. iur. Karen Schobloch) contests the VAT claim for the 2015 tax period against the law partnership 'Prof. [A.] & Dr. [B.] Rechtsanwälte'. The respondent is the Federal Tax Administration (FTA), Main Division VAT. The lower instance was the Federal Administrative Court, Division I, judgment of 12 March 2020 (A-5911/2019).

Facts: The simple partnership 'Prof. [A.] & Dr. [B.] Rechtsanwälte' was registered in the VAT register from 1 January 1995 until 31 January 2016. In September 2015, the appellant and Dr. iur. [B.] informed the FTA that Dr. [B.] would continue the practice as sole liable partner, and the appellant would act as 'Konsiliarius' (consultant). The FTA kept the appellant in the register because the joint external presentation continued. On 19 September 2019, the FTA issued a decision against the appellant as partner: VAT claim 2015 of CHF 75'893.35 plus default interest of 4%, costs of CHF 317.70, offset of CHF 3'636.15; the appellant was held jointly and severally liable.

Lower instance: The objection was treated as a direct appeal (Sprungbeschwerde). The Federal Administrative Court dismissed the appeal insofar as the assessment and the liability obligation were contested, and did not enter into the remainder.

Requests before the Federal Supreme Court: The appellant requests that the lower court judgment be set aside. The FTA requests dismissal of the appeal.

Issues in dispute: (1) Subjective VAT liability of the partnership in 2015; (2) personal liability of the appellant for the VAT debts; (3) protection of legitimate expectations; (4) scope of tax liability, in particular allocation of turnover that Dr. [B.] received via savings passbooks and a private account; (5) right to be heard.

Considerations

Admissibility and scope of review: The appeal in public law matters against decisions of the Federal Administrative Court in the field of VAT is in principle admissible (Art. 82 let. a, Art. 86 para. 1 let. a FSCA). Entry was granted without further ado. The Federal Supreme Court only examines the complaints raised (Art. 42 para. 2 FSCA), bases its decision on the facts established by the lower court (Art. 105 para. 1 FSCA), and considers new facts only as genuine novelties (Art. 99 para. 1 FSCA). The appellant's new assertions (trademark 'brand', abbreviation 'XY', further consultants on the homepage) remain unconsidered.

Right to be heard: The duty to give reasons (Art. 29 para. 2 Cst.) does not require an express engagement with every submission of a party. The lower court set out the essential considerations; the right to be heard has not been violated. The complaint that the appellant was not included in the assessment procedure is not sufficiently substantiated, and he was able to comment in the proceedings before the FTA (submission of 3 July 2019; Art. 15 para. 5 VATA).

Subjective tax liability of the partnership: Under Art. 10 VATA, the taxable person is the person or group of persons that operates the business and presents itself externally; the enumeration is not exhaustive, and groups of persons without legal capacity and without animus societatis may also be taxable. Decisive is the external presentation. In 2015 the partnership declared turnover of CHF 702'300.97 (first semester) and CHF 541'852.25 (second semester); the exemption threshold of CHF 100'000.-- (Art. 10 para. 2 let. a VATA) was therefore exceeded. The fee notes with the firm name, VAT number and naming of the appellant as Konsiliarius, as well as the joint homepage presentation, establish the external presentation. It is immaterial whether the appellant himself supervised mandates or provided services or signed.

Personal liability: Under Art. 15 para. 1 let. a VATA, the partners of a simple partnership or general partnership are jointly and severally liable with the taxable person within the scope of their civil liability (cf. Art. 544 para. 3 CO; Art. 568 paras. 1 and 3 CO). Joint and several liability can only be limited by agreement with the creditor; no such agreement exists. Based on the naming of the appellant in the firm name and his function as Konsiliarius, the lower court was entitled to conclude that the partnership continued and that an animus societatis persisted. The 1998 agreement (office sharing) does not change this, since the Federal Administrative Court had already established in another proceeding (A-3398/2017) that it does not concern the withdrawal.

Protection of legitimate expectations: The principle of good faith (Art. 9 Cst.) requires justified…