Facts
Parties and subject matter of the proceedings: The VAT group [A.] Holding AG (appellant, represented by the group representative [A.] Corporate Services AG) opposes the Swiss Federal Tax Administration (FTA), Main Division Value Added Tax. The dispute concerns VAT claims for the tax periods 2009 to 2013. The prior instance was the Federal Administrative Court, Division I, by judgment of 26 October 2020 (A-4487/2019, A-4488/2019).
Facts: The VAT group has been registered in the register of VAT-liable persons since 1 January 2005. Part of the group is [B. AG] , which concluded mortgage agreements in its own name and sold the mortgage receivables together with the collateral to risk bearers (financial service providers). The assignment took place as a silent assignment, and the debtors were not informed. The default risk passed entirely to the risk bearer. The debtors continued to pay the mortgage interest to [B. AG] , which forwarded the transfer price to the risk bearer. [B. AG] declared the difference (retained amount) as tax-exempt; the FTA qualified it as taxable consideration for the credit administration (servicing).
Contractual basis: Three agreements: Mortgage Asset Transfer, Mortgage Pricing and Mortgage Servicing (dated 9 April 2010). According to clause 8.1 of the Servicing Agreement, [B. AG] retained as consideration the difference between the customer interest rate and the transfer price; there was no entitlement to further compensation. The customer interest rate was composed of the transfer price, the servicing fee and the originator fee. Clause 13 provided for compensation of 15 basis points upon termination.
Assessments and prior instance: By assessment notices of 16 October 2015, the FTA subsequently levied taxes (2009: CHF 258,840.05; 2010: CHF 119,915.65; 2011: CHF 646,346.75; 2012: CHF 422,865.05; 2013: CHF 712,215.95). Following objections, it maintained the additional assessments by decisions of 5 October 2017. The Federal Administrative Court dismissed the appeals.
Requests before the Federal Supreme Court: The appellant requests that the 2009 tax liability be reset to CHF 3,177,755.-- (additional payment CHF 127,267.--) and for 2010-2013 to CHF 18,708,362.-- (additional payment CHF 533,576.--). Due to limitation, the FTA requests that the appeal be upheld as regards 2010 and otherwise dismissed.
Considerations
Procedural matters: The appeal in public law matters against the final decision of the Federal Administrative Court in a VAT matter is admissible (Art. 82 lit. a, Art. 86 para. 1 lit. a, Art. 90 FSCA; Art. 42 and Art. 100 para. 1 FSCA). Although VAT groups have no legal personality, the Federal Supreme Court recognises their capacity to be a party (Art. 89 para. 1 FSCA; judgment 2C_91/2015, BGE 142 II 113). The establishment of facts may only be corrected in case of arbitrariness (Art. 9 Cst.) (Art. 105 para. 2, Art. 97 para. 1 FSCA); an enhanced duty to raise and substantiate objections applies to constitutional complaints (Art. 106 para. 2 FSCA).
Applicable law and limitation 2010: For 2009, the old law applies (VATA 1999, with absolute limitation of 15 years under Art. 49 para. 4 VATA 1999); for 2010-2015, the new law applies (VATA 2009; Art. 112 para. 1 VATA 2009). Under Art. 42 para. 6 VATA 2009, the tax claim becomes absolutely time-barred ten years after the end of the tax period; for 2010, therefore, no further assessment has been possible since 1 January 2021, and the appeal is upheld to that extent (difference CHF 5,724.--). The Federal Supreme Court in BGE 144 II 273 and BGE 126 II 1 deemed the unequal treatment of claims under old and new law to be objectionable and contrary to equality before the law, and undertook a judicial gap-filling. However, the clear wording of Art. 112 para. 1 sentence 2 VATA 2009 only permits a deviation if there is a compelling reason (legislative history, purpose, systematics).
No teleological reduction for 2009: The materials show that the legislator primarily sought to prevent contested claims under old law from becoming time-barred 'suddenly'. The unequal treatment resulting from shortening the period from 15 to ten years is admittedly not unproblematic, but it concerns only a few tax periods (2006-2009) and does not reach the weight of a compelling reason for a teleological reduction. The tax claim for 2009 is therefore not time-barred.
Taxability of the servicing services 2011-2013: Under Art. 18 para. 1 and Art. 3 lit. c VATA 2009, services rendered for consideration are taxable. The sale of receivables is exempt under Art. 21 para. 2 no. 19 lit. c VATA 2009; the servicing services are subject to tax. Only the amount of consideration attributable to servicing is disputed. The tax base is the consideration actually received (Art. 24 para. 1 VATA 2009; Art. 3 lit.…