BG DECISION 9C_609/2022

Facts of the case
In the present Federal Supreme Court case 9C_609/2022, the taxpayer, which is organised under private law and whose statutory purpose is to provide teaching, research and service infrastructures for conventional medicine, intended to build a campus on a plot of land owned by the Canton of Zurich. For this construction project, the taxpayer received an investment amount of CHF 9,000,000 from the Lottery Fund of the Canton of Zurich.

As part of an inspection, the FTA took the view that the taxpayer had wrongly qualified the investment contribution from the lottery fund as a donation and not as a subsidy and had therefore wrongly not amended its input tax deduction. In particular, the FTA claimed that the contribution was based on a legal basis and was also earmarked for a specific purpose, namely as an investment contribution for the construction of the musculoskeletal research and development centre, the activities of which could be considered to be in the public interest. The taxpayer argued that the funds should be recognised as a donation and not as a subsidy.

Accordingly, it was disputed in this case whether the lottery fund had made an input tax-effective subsidy or an input tax-neutral donation.

Decision of the Federal Supreme Court
In general, the Federal Supreme Court states that a (tax-neutral) donation exists if a voluntary donation is made with the intention of enriching the recipient without the expectation of a supply in the VAT sense in return. The person receiving the donation can largely dispose of the funds as they see fit, which does not rule out the possibility of donations being made linked to a specific project. In principle, the beneficiary is not subject to any legally standardised duty of conduct. This means that, in principle, public authorities can also make donations.

The Federal Supreme Court examines three key criteria for distinguishing a subsidy from a donation:

1. Are the funds provided by a public authority?

2. Is the allocation of funds based on a legal basis?

3. Are the funds awarded without any expectation of a specific supply in return?

As a result, it denied this, as "the expectations on the part of the Canton of Zurich inevitably [had] to go further, as considerable public funds are at stake, which must be used economically and in a targeted manner". The canton of Zurich could "not be accused of having donated the funds and leaving their use largely to the taxpayer". However, this excludes a donation, as "in the case of a donation [...] it is to be expected that it is made free of a legally enforceable behavioural obligation, apart from the fact that the funds are used appropriately."

CONCLUSION

The judgement of the Federal Supreme Court raises questions. At the crucial points, the court relies more on conjecture than on substantiating its decisive considerations. In particular, the distinction between a "project-related donation" and a subsidy is unclear (although the court expressly recognises that there can be project-related donations). Taxable persons who receive donations that could be considered to be made by a public authority in the broadest sense should review their position from a VAT perspective. If such funds are newly awarded, the corresponding contracts should be checked to see whether they are sufficiently clearly formulated to be able to clearly distinguish between a donation and a subsidy. Subsidies are also to be part of the partial revision of the VAT Act. It remains to be seen whether this will create more clarity.

• JUDGMENT OF THE FEDERAL ADMINISTRATIVE COURT OF 10 AUGUST 2023 (A- 2587/2020)

In the case under review, the taxpayer had sold vouchers for outdoor events. With regard to VAT, the taxpayer had followed the practice of the FTA applicable until then, according to which the sale of a voucher was irrelevant for VAT purposes, largely irrespective of its concrete form. Only the redemption of the voucher led to an exchange of services relevant for VAT purposes, which was taxable according to the usual rules. The FTA now claimed that the VAT consequences differed depending on the design of the vouchers and that a distinction had to be made between service and value vouchers. In fact, the customer had a choice of the following types of voucher:

In the first variant, the customer received a voucher after payment, which he could use at a later date to obtain any service from the complainant for the amount stated on the voucher. This type of voucher was to be seen as a so-called "value voucher" in accordance with established practice as a means of payment, the issue of which was irrelevant for VAT and which only led to a VAT-relevant turnover when it was redeemed.

In the second variant, the customer received a voucher with which he could participate in the activity mentioned on the voucher at a later date at an already determined location in exchange for redeeming the voucher. This type of voucher qualified as a so-called "supply voucher", where the expenditure already led to a VAT-relevant turnover. Since the supply was already determined (or at least determinable), the payment was an advance payment that was taxable under the VAT Act at the time of receipt.

The Federal Administrative Court followed the FTA's argumentation in this regard, with the conse- quence that a distinction must now be made between the two types of voucher for the correct handling of VAT. In particular, a distinction must also be made as to which of the parties, the re- cipient of the supply or the supplier, bears the price risk. If it is borne by the supplier, it is a supply voucher. If, on the other hand, the price risk is borne by the recipient of the supply, this indicates the existence of a value voucher.

DEFINITIONS, VALUE ADDED TAX CONSEQUENCES AND EXAMPLES

Against this background, the FTA published its draft practice in this regard on 31 August 2023. According to this, the following definitions and VAT consequences apply:

According to the definition of the FTA, vouchers generally entitle the holder to purchase services and goods. They can be issued in physical or electronic form. It should be noted that the FTA ex- plicitly does not consider discount vouchers or tickets for public transport, admission tickets or stamps to be vouchers in the aforementioned sense.

In accordance with the above-mentioned ruling of the Federal Administrative Court, a distinction must now be made between value vouchers and supply vouchers, whereby the FTA does not take up the distinction made by the Federal Administrative Court regarding the question of who bears the price risk. Rather, a voucher is considered to be of value if only a value is stated on the voucher or electronically deposited and with which any supply can be obtained in the amount of the face value. Vouchers are to be treated as means of payment, since no supply is rendered and (technically) no payment is received upon sale; there is only an exchange of funds. Therefore, payments for value vouchers are not included in the assessment basis for VAT. However, it is a condition that no tax rate is shown on the voucher (otherwise the principle "tax invoiced is tax owed" applies).

It is interesting to note at this point that in the case of commercial trading in value vouchers, an exchange of supplies is nevertheless assumed: in this case, there is exempt turnover in the area of monetary and capital transactions. The FTA does not provide a justification for this reclassifica- tion of the VAT consequences depending on whether it is traded commercially or not as well as an answer to the question as to which trade in vouchers by companies could qualify as non-com- mercial. One thing is certain: if there is no remuneration, the corresponding flow of funds has no influence on the entitlement to deduct input tax. If, on the other hand, there are exempt transac- tions, the input tax deduction must be corrected accordingly. The question is therefore quite rele- vant in individual cases and it cannot be ruled out that courts will have to clarify it.

A supply voucher, on the other hand, exists if a specific or determinable supply is specified on the voucher. The customer can choose when the voucher can be redeemed, but not for which sup- ply. The presence of a value indication on the voucher does not change this qualification.

A supply is deemed to be identified or identifiable if the supplier can already determine where and in what amount the tax is due and settled when the voucher is sold due to the nature of the sup- ply. In this case, the receipt of the purchase price shall be deemed to be an advance payment and the tax shall become due at the time of receipt. If the voucher is not redeemed or expires, a correction is possible as a reduction of the consideration if the consideration is refunded or the recipient of the supply waives the refund of the consideration paid.

In the case of the supply voucher, the FTA points out that the tax is to be settled and paid in the period in which the consideration is received. With regard to the applicable tax rate, it should be noted against the background of the tax rate changes coming into force on 1 January 2024 that the tax rate applicable at the time of the provision of the supply is decisive (cf. also our blog post from 09.08.2023). Since the customer alone decides when the voucher is redeemed, especially in the case of vouchers with a longer validity period, the service provider cannot know when he will finally provide the service in the case of a validity period spanning several years. In such cases, the tax rate at the time of sale is likely to be decisive as an exception, and a possible subsequent correction is unnecessary.

The FTA also lists various examples. It should be emphasised that the FTA also assumes that the voucher is a supply voucher if the customer can redeem the voucher for a supply other than the one specified on the voucher in accordance with the GTC of the supplier (and without any fur- ther reference on the voucher). In contrast, a value voucher is to be assumed if the voucher itself optionally allows redemption for a different supply. In this way, the FTA presumably wants to pre- vent suppliers from being able to easily turn all vouchers they sell into supply vouchers on the ba- sis of clauses in the general terms and conditions, in order to possibly circumvent the input tax adjustment that is necessary if value vouchers are sold commercially (see the comments above).

PARALELLES TO THE REGULATION IN THE EU

In the EU, a distinction is made between single-purpose and multi-purpose vouchers. A single- purpose voucher exists if the applicable tax rate can be determined at the time of issue because the supply to be provided upon redemption is already determined or determinable. The tax liabil- ity for single-purpose vouchers arises at the time of issue. Multi-purpose vouchers, on the other hand, are vouchers for which the consideration is not yet clearly determined and therefore the tax rate ultimately to be applied is not yet determined at the time of issue. Consequently, the tax lia- bility only arises on the occasion of redemption. Although the terms and definitions are not congruent, parallels can be seen. For example, the value voucher corresponds largely to the multi-purpose voucher, the supply voucher to the single- purpose voucher. However, the extent to which there is actually congruence in practice or in the assessment of individual cases remains to be seen.
Die Begriffe und Definitionen sind zwar nicht deckungsgleich, dennoch sind die Parallelen zu erkennen. So entspricht der Wertgutschein wohl weitgehend dem Mehrzweck-Gutschein, der Leistungsgutschein dem Einzweck-Gutschein. Inwieweit hier aber in der Praxis bzw. anlässlich der Beurteilung von einzelnen Fällen tatsächlich Deckungsgleichheit besteht, wird sich noch erweisen müssen.

• CONCLUSION

It is gratifying that the FTA has now published its reassessment of the practice on vouchers in the wake of the Federal Administrative Court's ruling and is working with examples. Nevertheless, one or two questions remain unanswered and it remains to be seen how the rules developed by the FTA will prove themselves in practice. Providers of vouchers are recommended to familiarise them- selves with them in order to ensure compliance. In individual cases, it may be advisable to seek the advice of an expert.

Hintergrund

The legal dispute to be decided by the FAC concerned validation and verification activities in the blockchain networks Polkadot (with the native token "DOT") and Kusama (with the native token "KSM"). The taxpayer performed validation and verification activities in the aforementioned block-chain networks, which are based on the proof-of-stake concept, using software and hardware as a so-called "validator". For its activities as a validator, the taxpayer received so-called block rewards newly created by the protocol as well as a share of the transaction fees spent by the senders.

A VAT audit by the Federal Tax Administration (FTA) resulted in a claim for additional taxes in connec-tion with these activities.

Die ESTV begründete die Steueraufrechnungen damit, dass die Validierungs- resp. Verifizierungstätigkeiten der Steuerpflichtigen zusammen eine steuerbare elektronische Dienstleistung nach dem Empfängerortsprinzip darstellten, wenn die Steuerpflichtige neben dem Block-Reward auch eine Transaktionsgebühr erhält, welche vom Versender resp. von den Versendern mit Sitz im Inland für eine bestimmte Transaktion über das Netzwerk bezahlt wird. Diesfalls bestünde ein steuerbares Leistungsverhältnis zwischen dem Versender als Leistungsempfänger und der Steuerpflichtigen als Leistungserbringerin, welches der Inlandsteuer zum Normalsatz unterliege. Das Entgelt für die Validierungs- resp. Verifizierungstätigkeiten bemesse sich am Block-Reward und der Transaktionsgebühr.

Considerations of the FAC

The FAC's reasoning for the ruling expresses itself on some fundamental questions.

Network and sender as separate recipients of the services of the validators

The FAC first addresses the question of the recipient of the services provided by the validators.

It states that validators in the blockchain network at issue here, on the one hand, provide services for which the network itself is to be regarded as the service recipient. This is justified, among other things, by the fact that the validators can (at least theoretically) also create blocks that do not contain any transactions. For the creation of such empty blocks, the validators also received the correspond-ing reward offered by the network (E 3.4.2.2).

On the other hand, according to the court, the activities of the validators directly benefited the send-ers and they were therefore to be regarded as recipients of services. The court thus contradicts the opinion of the FTA, according to which only the senders are to be considered as service recipients.

Decentralised networks not recipients of supplies within the meaning of VAT

The court then addresses the question of whether a network company behind the network is the actual recipient of the supplies to the network.

Bei den beiden hier betroffenen Netzwerken handelt es sich nach Ansicht des BVG um «echte» dezentrale Netzwerke, in denen die Protokollgesellschaft keine alleinige Verfügungsmacht habe. An der alleinigen Verfügungsmacht fehle es, soweit alle Änderungen am Protokoll per Stake-gewichteter Abstimmung unter den Netzwerkteilnehmern beschlossen werden und die jeweilige Protokollgesellschaft selbst nicht über genügend Token verfüge, um Protokoll-Änderungen gegen den Willen der übrigen Netzwerkteilnehmer durchsetzen zu können (E 3.4.2.3). Es sei unstrittig, dass bei Leistungen, die ausschliesslich an ein dezentrales Blockchain-Netzwerk als solches erbracht werden, mangels zuordenbarem Leistungsempfänger keine Leistungen im mehrwertsteuerrechtlichen Sinn gegeben sein können (E 3.2). Diese Tätigkeiten fielen demnach nicht in den Anwendungsbereich der Schweizer Mehrwertsteuer.

Thus, only the transaction processing was to be assigned to the sender of a transaction as the ser-vice recipient (E 3.4.3.4).

Transaction processing = taxable service subject to the place-of-receipt principle

In the court's view, this transaction processing constituted a fundamentally taxable service subject to the place-of-recipient principle, for which the validator received the transaction fee (E 3.5.3). However, this did not change the qualification of the block rewards (allocated by the protocol) as non-remuneration (E 3.4.4).

CONCLUSION

The ruling brings clarity regarding the basic VAT treatment of certain activities of validators.

Im Detail unerörtert (da nicht streitgegenständlich) bleiben aber beispielsweise Fragen im Zusammenhang mit der Bemessungsgrundlage in Bezug auf die Transaktionsgebühren für die Leistungen der Validatoren.

It should also be noted that the ruling, by its very nature, dealt with a specific set of facts in a specif-ic environment. As two applications are rarely identical in the blockchain world, it is imperative to thoroughly analyse the relevant facts and examine where any deviations or parallels to the case de-cided here exist.

Last but not least, it remains to be seen whether the ruling will be appealed to the Federal Supreme Court.

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Electronic platforms ("platform taxation")

In future, the electronic platform itself will be regarded as the person making the supply that the seller and buyer conclude through it: A chain transaction is therefore deemed to exist between the seller, the electronic platform and the customer.

Services do not fall within the scope of the new regulation on platform taxation.

If the goods supplied in Switzerland come from abroad, the supply is deemed to be made by the platform in Switzerland if it makes at least CHF 100,000 per year from the supply of small con-signments exempt from import tax (Art. 7 para. 3 let. b VAT Act; so-called "mail-order regula-tion"). In this case, the foreign platform becomes liable to pay tax in Switzerland.

If the electronic platform fails to comply with its VAT obligations in Switzerland, the FTA may order administrative measures against it, ranging up to import bans and the destruction of goods without compensation. The names of the electronic platforms against which such measures have been determined are made public by the FTA.

The application of platform taxation is linked to a number of preconditions which make it neces-sary to examine the specific transactions in the individual case and to subsume them under the new regulation.

Travel agency services

In future, all services provided by travel agencies in their own name will be considered as ser-vices taxable at the provider location. A distinction between accommodation, catering or transport services provided by the travel agency in its own name, which are taxable at the place where the service is actually provided, is therefore no longer necessary.

The services of travel agencies are exempt from tax (i.e. in principle entitle the taxpayer to de-duct input tax) if they are actually performed abroad or if it is a service that would be exempt from tax under Article 23 para. 2 VAT Act if it were not performed by a travel agency. This now also includes the travel agency's own services, such as tour guides.

As a result of the new regulation, foreign travel agencies or tour operators will no longer be lia-ble for tax in Switzerland if they organise trips to Switzerland. In return, they cannot reclaim input tax on services purchased in Switzerland. Domestic travel agencies and tour operators, on the other hand, must pay full tax on such domestic trips.

Subsidies

A legal fiction is now included in the law, according to which funds paid out by a community are considered a subsidy or contribution under public law for VAT purposes, provided that the com-munity expressly designates these funds as a subsidy or contribution under public law to the person receiving them.

Subsidies are considered non-considerations that are not subject to VAT but require a reduction of the input tax deduction at the level of the subsidy recipient, Art. 18 para. 2 let. a in conjunction with Art. 33 VAT Act.

Trading in emission and comparable rights

The transfer of emission rights, certificates and attestations for emission reductions, guarantees of origin for electricity and similar rights, certificates and attestations will now be subject to ac-quisition VAT (“Bezugsteuer”) regardless of whether the supplying party is registered for VAT in Switzerland or not, Art. 45 para. 1 let. e of the Draft VAT Act.

At present, it is still unclear whether the VAT Ordinance will create the precondition for the appli-cation of the notification procedure (“Meldeverfahren”) for the settlement of corresponding commercial transactions on a transitional basis until the partially revised VAT Act comes into force.

Administrative measures (reporting period, fiscal representation)

Taxable persons with a turnover of no more than CHF 5,005,000 per year from taxable services will in future be given the option of settling their VAT annually upon request. The application of annual accounting does not change the accounting method. In the case of annual reporting, ac-counting is therefore still carried out either effectively or - if a corresponding authorisation is available - with flat-rate tax rates (“Saldo-“ or “Pauschalsteuersätze”).

Pursuant to Art. 86a of the Draft VAT Act, a provisional tax payment is made during the annual reporting period by means of instalments that are determined by the FTA and invoiced quarterly or semi-annually (depending on the accounting method). The tax claim of the last tax period is decisive for the determination of the instalments. If it is not yet known, it is estimated by the FTA. In the case of newly taxable persons, the tax claim expected by the end of the first tax pe-riod is decisive.

In future, the FTA may refrain from requiring foreign companies to designate a domestic fiscal representative, provided that the fulfilment of the procedural obligations by the taxable person and the swift enforcement of this law are guaranteed in another way, Art. 67 of the Draft VAT Act.

The practical significance of this amendment to the law remains to be seen, as the service abroad of documents with more than purely informative content can be very sensitive from a legal point of view and may even be relevant under criminal law. Therefore, in fact, it can only be done through diplomatic channels (which are not practicable in mass proceedings) or where this is regulated accordingly in bilateral treaties.

Applicability of the reduced tax rate and tax exemptions

In future, the reduced tax rate will apply to menstrual hygiene products.

The following are now exempt from VAT:

• Travel services resold through travel agencies and related services
• Active participation in cultural events
• Coordinated care benefits for curative treatments
• Provision of infrastructure to attending physicians in outpatient clinics and day clinics
• Care and domestic services of private Spitex
• Offer and manage investment groups of investment foundations in accordance with BVG



CONCLUSION

The partial revision is accompanied by partly far-reaching changes. Depending on the respective industry, this may make it advisable for taxpayers to fundamentally consider their current setup. In any case, it is important for taxpayers to understand at an early stage what effects the partial revision has or may have for them. We are happy to support our clients in identifying risks and structuring options and in planning in the best possible way for the company.

STUMBLING BLOCK PRINCIPLE OF CONGRUENCE

The tax on profit from sale of real estate is intended to tax the so-called "unearned appreciation of value" on the sale of a property. This presupposes that, in terms of scope and content, the same property is sold as was acquired at the time. So-called comparable circumstances must be established by taking into account the changes in substance that occurred during the period of ownership or since the previous sale when determining the profit. The value of the property in question may have increased (increase in substance) or decreased (decrease in substance) as a result of actual or legal changes.

A decrease in substance can occur either through legal or actual deterioration, a reduction in the substance of the property or its area. However, the cause of an actual decrease in substance may not only be that a building built on the property was destroyed or neglected, but may also result from the fact that the building is no longer worth preserving for economic reasons, e.g. because the property is structurally underutilised and the existing building is therefore not prof-itable despite its good condition. If such a property is demolished by the new owner immediately after the sale, from the point of view of the tax administration it is effectively undeveloped land that is being sold. In application of the principle of congruence, the purchase price must there-fore be reduced by the value of the building at the time in order to determine the tax on profit from the sale of real estate, i.e. only those property values that are to be compensated with the proceeds (purchase price) are to be considered as investment costs when determining the profit.

The decisive factor in determining whether such demolished buildings are taken into account in the investment costs is whether these buildings were included in the pricing. As a rule, the pub-licly certified contract of sale is used as evidence. There is a presumption that the purchase price includes the value of the property with all its components if the sale contract does not con-tain any indications for or against the inclusion of the building in the pricing. However, this can be disproved, for example on the basis of indications that the purchaser intended the demolition (with subsequent new construction) from the outset and that it is therefore not to be assumed according to life experience that the purchaser would have been willing to pay for this object as well. The fact that the seller was aware of the fact that the purchaser intended to demolish the property immediately after the purchase and replace it with a completely new building can also speak against the inclusion of the building in the purchase price.

Conclusion

It is advisable to ensure that all real estate assets are considered when determining the purchas-ing price of a property which is demolished following the change of ownership. The real estate assets should be listed accordingly in the contract of sale in order to avoid a high financial bur-den due to the tax on profit from real estate.