Facts
The appellant, [A. AG] (formerly [B. AG] ), was in 2016 the parent company of the [B.] Group, which was active in pharmaceuticals, pharmacies, logistics and databases. In 2016, representatives of the group negotiated with the publicly listed US target company [C.] Inc. regarding its takeover. For this purpose, a US group company ([A.] USA Inc.) was founded, which was to merge with the target company after the takeover (reverse merger). The takeover was carried out by means of a public purchase offer and share purchase; the purchase price was financed by a loan from [D. AG] .
The appellant is a holding company and securities dealer within the meaning of Art. 13 para. 3 lit. d StA. The Federal Tax Administration (FTA) classified it as an intermediary of the transaction and demanded turnover duty of CHF 4'262'848.50. On 1 November 2016 the appellant paid CHF 4'300'000.-- under reservation; on 27 March 2017, CHF 37'151.50 was refunded. The FTA's decision of 11 August 2017 was confirmed by the FTA in its decision on objection of 22 February 2019. The Federal Administrative Court (Division I) dismissed the appeal by judgment of 9 June 2020 (A-1480/2019).
By appeal in public law matters of 10 August 2020, the appellant requested the annulment of the judgment of the lower court and the refund of CHF 4'262'848.50 plus interest on the refund. The FTA requested that the appeal be dismissed.
Considerations
The Federal Supreme Court first examined the admissibility of the appeal (Art. 100 para. 1, Art. 42, Art. 90, Art. 86 para. 1 lit. a, Art. 89 para. 1 FSCA) and entered into the matter. The disputed question was whether the appellant was an intermediary of the share purchase within the meaning of Art. 13 para. 1 StA. Stamp duties are of a formal nature, which is why the form of the transaction and not its economic purpose is decisive (BGE 143 II 350 consid. 2.2).
The concept of intermediary in Art. 13 para. 1 StA is not defined. Art. 13 para. 3 lit. b and Art. 17 para. 3 StA use the term in a different context and are not decisive for the interpretation of Art. 13 para. 1 StA. Art. 17 para. 3 lit. b StA (proof of the opportunity to conclude the transaction) is not exhaustive; a brokerage contract or remuneration is not required for intermediation. Intermediation within the meaning of Art. 13 para. 1 StA is determined by the understanding of brokerage contract law (Art. 412 et seq. CO), in particular of evidence brokerage and intermediary brokerage, since the turnover duty, like the brokerage fee, depends on success (Art. 15 StA), is historically connected, and is formally designed.
For intermediation, a psychological causal connection between the activity and the conclusion of the transaction is required; it is sufficient that the activity was a remote cause of the decision, and several intermediaries may act alongside one another. A contracting party that concludes a transaction in its own name for the account of another is a contracting party and not an intermediary. A contractual or brokerage relationship between the intermediary and the contracting party is not required.
The lower court and the FTA wrongly relied on economic approaches (BGE 145 II 270 on value added tax). Since Art. 13 para. 1 StA contains no economic concepts, it is immaterial whether the appellant was economically the principal. A teleological reduction or an exclusion of parent companies of groups from the concept of intermediary is not justified: the wording is clear, the historical development (1927 amendment, Art. 33 aStA; Art. 13 para. 3 lit. d StA) shows no intention of the legislator to exempt holding companies from the duty, and the…