Facts

The taxable person (appellant in proceeding 2C_29/2020, respondent in proceeding 2C_79/2020) had operated a take-away branch as a self-employed person since 1 April 2011. On 4 October 2011 she registered with the Swiss Federal Tax Administration (FTA) and requested accounting under the saldo tax rates. She described her business model as 'take-away without consumption option'. The FTA entered her retroactively as of 1 April 2011 in the VAT register and approved a saldo tax rate of 0.6 percent, which the taxable person applied.

On 14 February 2013 the taxable person concluded with [B. GmbH] & Co. CartA a contract designated as an agency contract. She was authorised to sell the entire [B.] range in the name and for the account of [B.] (§ 4 para. 1), had to ensure a uniform market presence and transfer the daily turnover (§ 6 para. 1). She was entitled to 33.0 percent of the net turnover (§ 7 para. 1); in return she owed a fee of 17.0 percent. Claim and counterclaim were set off and the balance transferred.

In an audit of 7 August 2017 covering tax periods 2011 to 2015, the FTA found that the taxable person had acted as an agent. She had applied a saldo tax rate of 6.1 percent to the 'commission', and by decision of 10 August 2018 the FTA reassessed CHF 94'862.--, of which CHF 9'464.-- for 2011. The objection decision of 7 May 2019 confirmed this.

The Federal Administrative Court (Division I, judgment A-2859/2019 of 5 December 2019) upheld the appeal to the extent of CHF 9'464.--, because the tax period 2011 had become time-barred on 1 January 2017; for the remainder it dismissed the appeal. Both parties filed appeals in public law matters with the Federal Supreme Court against this judgment. The proceedings were joined. The taxable person requested legal aid.

Considerations

The lower court qualified the contract as an agency contract based on its wording. The taxable person acted in the name and for the account of [B. GmbH] & Co. CartA; the assessment of evidence, according to which she did not sell her own products, is constitutionally tenable. Under Art. 20 para. 1 and 2 VATA 2009, the supply is deemed to have been made by the person who acts externally; the taxable person acted as a direct representative, the supplies are attributable to the principal, and the taxable person is only required to tax the commission.

The VAT (law of 2009) is a modified self-assessment tax (Art. 71 para. 1, Art. 86 para. 1, Art. 69 and Art. 77 VATA 2009). Under Art. 84 para. 1 VATO 2009 the taxable person had to apply the approved saldo tax rate, but was obliged to adapt the accounting practice to the changed circumstances and to inquire with the FTA in case of doubt. Her omission was negligent; there is no protection of legitimate expectations in the original allocation of the saldo tax rate. For analogy where no category exists, the category postal agency is obvious, whereby the rate of 6.1 percent (services, insofar as not mentioned elsewhere) applies.

Under the saldo tax rate method, the consideration actually received is the tax base (Art. 37 para. 2 and Art. 24 para. 1 VATA 2009). Offsetting of income and expenses or an input tax deduction is excluded, since the industry rates take input taxes into account on a flat-rate basis.…