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
The Federal Supreme Court examines three key criteria for distinguishing a subsidy from a donation:
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:
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.
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).
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.
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.
The Italian tax authorities have issued a VAT assessment of 870 million euros against the US group Meta for the period 2015 to 2021. They consider that there is an exchange agreement between the users and the platforms operated by the Meta group, such as Facebook, on the basis of which Meta owes the VAT on the value of the access to the respective platform. Accordingly, the users are in fact paying with their data for access and for the use of the group's platforms. The case is also interesting for Swiss companies that provide private users in the EU area with free (or very cheap) online access, e.g. to information platforms, and in doing so retrieve/economically use customer data.
Various social media platforms such as Facebook, WhatsApp or Instagram belong to the Meta Group. These platforms are accessed and used by millions of people worldwide. From the perspective of the Meta Group and probably also in the perception of many users, access to these platforms is granted free of charge. In particular, users do not owe any payment of an access fee or anything similar. Rather, the users' consent to the evaluation and marketing of their personal data by the Meta Group is sufficient for the granting of access, whereby this is usually done by agreeing to the terms and conditions of the respective platform. If consent to the GTC is refused, this usually means that the persons concerned are denied access to the desired platform.
Specifically, as far as can be seen, the Meta Group does not use the data directly, but indirectly: By evaluating user data such as gender, age, locations, devices used, likes, pages visited, etc., third-party advertising can be targeted and tailored to the respective user. Thus, advertising revenues account for over 95% of Facebook's turnover. In this way, user data is ultimately (indirectly) monetized.
What does this (possibly) mean for VAT?
Based on the EU VAT Directive, the provision of goods or services for consideration is subject to VAT. It should be noted that the term "consideration" does not only mean money. Rather, payment in kind can also be received. If the payment for a service is made in kind, it is commonly referred to as a barter relationship in which the market value of each service is regarded as payment for the other service.
With regard to the specific case, the Italian tax authorities also take the view that access to the platform is only supposedly free. This is because users pay with the value of their data. This means that the Italian authorities attribute a market value to the user data, probably with the idea that they represent an essential element for the financial success of the Meta Group: Without the data, a targeted placement of advertising would not be possible and thus the advertising on the platforms would not be as interesting for third-party providers, so that advertising revenues without the use of the data would, if not collapse, then be significantly lower.
The service "granting access to platforms/digital content" is likely to be an electronically supplied service according to the usual VAT rules (no significant human action is required on the part of Meta to enable access). The place of supply is determined according to Art. 58 of the EU VAT Directive. Accordingly, in all cases in which the users are resident in Italy, Italy is deemed to be the place of supply. And since the majority of users are likely to be private individuals, Meta (or the group company operating the platform) is responsible for settling the VAT with the Italian authorities (this requires either direct VAT registration in Italy or registration via the One Stop Shop). The basis of assessment for the service "granting access to platforms/digital content" provided by Meta would therefore be the market value of the data received.
Questions and possible consequences
The case is not entirely simple in various respects and raises many questions that the courts will have to answer. The most important question is how exactly the market value of individual data is to be measured (e.g. is all data worth the same or is the data of certain groups of people, e.g. data of celebrities/influencers more valuable than data of "normal" users). If a market value is attributed to the data, any company that grants private users free online access to information across borders and thereby makes economic use of customers' data must check whether and to what extent VAT registrations are necessary in the states where the users are located. It may also be advisable to charge a fee for online access (which is then offset against the value of the data) and/or, if possible, to seek a ruling with the respective tax authorities in the relevant states in order to achieve legal certainty on the basis of assessment.
Ultimately, questions also arise from the point of view of the users: do they themselves now become potentially taxable entrepreneurs if, conversely, they receive access to digital content/platforms as remuneration for their consent to data collection and exploitation?
The case is of outstanding importance, not only for Meta and because of the horrendously high amount at stake. Because if the court follows the argumentation of the Italian authorities, it is foreseeable that other EU member states will probably not hesitate to take the same course against Meta, which is likely to have enormous additional financial consequences for the company. Switzerland could also follow suit, and not just against Meta: any company that links private consumers' access to certain services to consent to the use of personal data, from Google to the local supermarket that issues a loyalty card, is potentially affected.
Invoices are known to be of outstanding importance in VAT: on the one hand, they are used to pass on the VAT (if applicable) to the customer, and on the other hand, they form an essential basis for companies to reclaim the VAT charged on them (so-called input tax). So far, Switzerland knows two invoice formats: the paper invoice and the electronic invoice (or e-bill). The latter is currently defined by the Federal Tax Administration (FTA) as an electronically generated doc-ument that has the same contents and legal consequences as paper invoices. With the revision of VAT Info 16, Bookkeeping and Invoic-ing, draft of 3 May 2023, another format will apparently be intro-duced: in addition to the paper invoice and the e-invoice, there will now also be the digital invoice. But how exactly do these two latter categories differ from each other? And how relevant is this for com-panies operating in Switzerland in practice, what are the possible consequences?
Only a few decades ago, invoice documents were always created in paper form (for lack of bet-ter alternatives), but in the course of digitization, new cheaper and time-saving options quickly opened up: for example, the invoice sent via e-mail in PDF format enjoyed increasing popularity. The previously applicable VAT rules on invoices were rigid, the formal requirements high and ultimately tailored to paper invoices. New rules became necessary to create legal certainty for businesses in dealing with invoices that are not created and sent in paper form or that are sent in paper form but archived electronically. This applies not only to Switzerland, but worldwide.
E-BILLS IN SWITZERLAND
CURRENTLY VALID REGULATIONS
The Swiss VAT Act (MWSTG) defines an invoice as a document with which the remuneration for a service is settled. The name of the document is irrelevant (substance over form). Thus, con-tracts, receipts, sales slips and the like are also considered invoices within the meaning of the VAT Act. The law is silent on the question of the type of medium. In its published and currently valid practice, the FTA defines electronic invoices as electronic documents that have the same content and legal consequences as paper invoices. The FTA thus explicitly recognizes e-bills as invoices and states that the same rules apply to e-invoices as to paper invoices. Thus, in princi-ple, invoices in electronic form have the same probative value as paper invoices, provided that the principles of proper accounting and all requirements of the Ordinance on Business Records (GeBüV = Geschäftsbücherverordnung in German) are complied with (i.e. the documents are stored in such a way that they cannot be changed and can be checked at any time during the legal retention period). This is in line with the freedom of evidence anchored in the VAT Act. This practice has opened the way for businesses to send invoices in PDF format via e-mail or in another digital format and to do without printing and mailing, still not having to fear adverse VAT consequences. This applies regardless of the possible use of an electronic signature.
RECENT FTA PUBLICATIONS AND PLANNED PRACTICE ADJUSTMENTS
At the beginning of May 2023, the FTA published the draft of the revised VAT Info 16, Account-ing and invoicing (the consultation period expired on 7 June 2023). The present draft shows that electronic invoices will continue to be treated the same as paper invoices and will in principle be accepted as evidence. However, it is interesting that according to the draft, the passage on the definition of an electronic invoice is to be deleted without replacement. Instead, the following sentence is found in a seemingly incidental note:
"The paper invoice, electronic invoice and digital invoice (e.g. PDF invoice or scanned paper invoice) are equal for VAT purposes."
Hiermit führt die ESTV neben der Papierrechnung und der E-Rechnung offenbar eine dritte Kategorie, nämlich die digitale Rechnung, ein. Heisst das, eine Rechnung im PDF-Format gilt nicht mehr als elektronische Rechnung? Und was genau ist dann unter einer elektronischen Rechnung im Unterschied zur digitalen Rechnung zu verstehen? Hat dies für Unternehmen eine Praxisrelevanz? Dem Entwurf der Praxispublikation ist dazu nichts weiter zu entnehmen.
A LOOK ACROSS THE BORDER
A look at the regulations in force in the EU could give an indication of how a digital invoice might be distinguished from an e-invoice:
As early as 2010, the EU VAT Directive was adapted to the effect that documents sent and re-ceived in an electronic format and containing the same content as a paper invoice are in principle also to be regarded as invoices. In doing so, the EU deliberately wanted to promote the use of e-invoices. However, as is often the case, this provision is interpreted and applied differently by the individual EU Member States, in particular with regard to what the requirements are for such an invoice to be considered valid for VAT purposes. Some countries, like Switzerland, accept simple PDF invoices, others require an additional electronic signature or are even stricter. Within the framework of Peppol (Pan-European Public Procurement On-Line), a project that aims to harmonize the process of electronically supported public procurement within the EU, the EU Directive on Electronic Invoicing for Public Contracts was then enacted in 2014. This defines e-invoicing very narrowly as an invoice issued, transmitted and received in a specific structured electronic format (CEN/TC 434 EN16931) that enables its automatic and electronic processing. Invoices in PDF format are not covered by this definition (even if they are indisputably transmit-ted digitally). In the meantime, it applies to all EU member states that invoices to government authorities (so-called B2G, Business to Government) may only be submitted in this special struc-tured format. The EU's currently much-discussed VAT initiative, ViDA (VAT in the Digital Age), now builds on this definition of electronic invoicing and provides for an obligation to issue elec-tronic invoices in the CEN/TC 434EN16931 format for companies that provide cross-border ser-vices in the EU, even for transactions between companies (B2B).
SIGNIFICANCE FOR SWISS PRACTICE
It is not clear whether Switzerland or the FTA is preparing to also introduce corresponding regu-lations in the foreseeable future and possibly even to define e-invoices in the future only as invoices that are transmitted and received in a specific structured format. Admittedly, Switzerland is not a member of the EU and is therefore not obliged to submit to the invoicing requirements applicable in the EU. In the interest of the economy, however, it makes sense to align Swiss VAT law to a certain extent with that of the EU, even if this is initially only a question of definitions. For at present it cannot be seen that the linguistic introduction of a third form of invoices planned by the FTA will have any practical relevance in Switzerland: the invoice categories "pa-per invoice", "e-invoice" and "digital invoice" are on an equal footing, and there are currently no indications for the introduction of mandatory invoicing in a specific structured electronic format. However, it will probably be made possible, as can be seen from the fact that the Federal Fi-nance Administration is promoting e-billing in a media release dated 17 March 2023 (https://www.efv.admin.ch/efv/de/home/efv/erechnung/e-rechnung-zustellen.html): according to the media release, invoicing in PDF format qualifies as e-billing, as does invoicing by means of an integrated system (ERP; with or without the involvement of a service provider) and the re-cording of the invoice on the internet (via service provider).https://www.efv.admin.ch/efv/de/home/efv/erechnung/e-rechnung-zustellen.html): denn gemäss Medienmitteilung qualifizieren als E-Rechnungen die Fakturierung im PDF-Format ebenso wie die Fakturierung mittels integriertem System (ERP; mit oder ohne Involvierung eines Service Providers) und die Erfassung der Rechnung im Internet (via Service Provider).
The planned distinction between e-invoices and now also digital invoices is probably only a lin-guistic differentiation that will most likely have no effect in Swiss practice at present. However, it remains to be seen whether this will also apply in the future. Companies based in Switzerland that are active in the EU should keep an eye on the developments in connection with the ViDA initiative and how the Swiss authorities will react on that.
The Federal Supreme Court recently ordered an art collector to pay back import taxes of around CHF 11 million plus interest on arrears of around 2.5 million. However, it became really expensive for the art collector when the tax investigators of the cantonal tax office examined the files seized by customs in detail.
Background was that the import into Switzerland was carried out by a gallery that had a permit to use the Postponed VAT Accounting Procedure. Apparently incorrectly, because as the court confirmed in its ruling 2C_219/2018 of 27 April 2020, only the person who has the economic power of disposal over the imported goods immediately after the import is entitled to act as importer of records. The fact that the gallery had the power of disposal over the works was denied in the present case and as a result the art collector, who actually had the power of disposal at the time in question and therefore should have acted as the importer of records, was obliged to pay the import taxes.
Under the postponed VAT accounting procedure, the importer does not pay the import tax to the Swiss Federal Customs Authorities, but declares it on a separate form as part of the corresponding quarterly VAT statement and at the same time claims it as input tax (which is why no money flows). The application of the postponed VAT accounting procedure is subject to various cumulative requirements, including that the licensee is liable to pay tax in Switzerland.
In the case under review, the art collector was not registered for VAT in Switzerland, for which reason alone he was not authorized to use the postponed VAT accounting procedure and was generally not entitled to deduct input tax.
This case shows, on the one hand, the importance of careful (and in this case also truthful) documentation and internal organization of certain processes related to VAT. With the necessary compliance structures and an ICS (Internal Control System) for VAT, the risks of incorrect application of a legal procedure or systemic wrong decisions could be reduced. After all, it does not always have to be criminal energy that leads to considerable VAT offsets. It is sufficient, for example, that the legitimate importer of records is accidentally not recorded in order to have serious consequences. In this context, this case illustrates the central importance of constant monitoring of the factors that distinguish hobby from self-employment for direct tax purposes.
On the other hand, this case vividly illustrates that authorities do not only fulfill their own tasks. In this case, the interdepartmental cooperation between the customs administration, the VAT authorities and the cantonal tax office had far-reaching consequences. By way of administrative assistance, the effectiveness of individual tax audits can be extended to other tax areas of a tax subject. An isolated examination of individual tax types without a view of the entire tax situation, as could be achieved with a comprehensive ICS - be it at the level of an individual or a company - can therefore lead to a spiral of tax consequences or reclassifications and offsets, as in the present case. It is therefore all the more important to assess relevant transactions holistically.
In many areas, the Swiss VAT regulations are very similar to the European VAT law - but not without arriving at completely different results in individual cases. Accordingly, many of the discussions taking place at European level and in the Member States are also taking place at Swiss level. This also applies, for example, to the supply relationships involving the use of fuel cards. A year ago, the Swiss Federal Tax Administration (FTA) published its first draft on how it would like these supply relationships to be qualified for VAT purposes, and on 20 January 2023 it published its definitive practice on the subject.
For the purposes of its administrative practice, the FTA defines a fuel card as a card that allows the fuel card holder (customer) to purchase certain supplies at petrol stations upon presentation of the card.
The fuel card issuer shall specify in the general terms and conditions (hereinafter referred to as GTC) and/or contracts the service stations for which the fuel card is valid and the supplies that can be purchased with the card. The fuel card holder may, for example, purchase fuel, vehicle consumables (lubricants, antifreeze, etc.), goods or other services at a petrol station.
According to its now published practice, the FTA seems to assume that the supply provided by the fuel card issuer to the fuel card holder is a financial service exempt from VAT without the right to recover input tax. While this presumption was explicitly formulated in the first draft, there is now no clear wording ("it must be examined whether the card can be treated like a credit card for tax purposes"). Administrative sources have indicated that the softer wording in the final publication has not changed the FTA's basic view that, in principle, a financial service is to be presumed to have been provided by the issuer to the holder.
As an exception to this rule, fuel card issuers have the option of treating the supplies processed via the fuel card as chain transactions (i.e., the service station does not supply the fuel card holder but the issuer, who in turn supplies the fuel card holder). This different treatment is only possible if the following conditions defined by the FTA are cumulatively met:
The FTA's practice publication creates legal clarity and allows fuel card issuers to structure their business models accordingly. In view of the clearly formulated catalogue of conditions required to be treated as a chain transaction, we strongly recommend reviewing existing agreements and adapting new contracts accordingly.
Die subjektive Steuerpflicht in der Mehrwertsteuer setzt unter anderem eine «nachhaltige» Einnahmenerzielungsabsicht voraus. Nach Ansicht von Verwaltung und Bundesverwaltungsgericht kann dabei auch eine einmalige Transaktion (hier: die Vermittlung einer Immobilien-Transaktion) «nachhaltig» sein und eine subjektive Steuerpflicht begründen, wie ein neueres Urteil des Bundesverwaltungsgerichts zeigt (A-4115/2021).
Steuerpflichtig ist, wer unabhängig von Rechtsform, Zweck und Gewinnabsicht ein Unternehmen betreibt und von der Steuerpflicht nicht befreit ist. Ein Unternehmen betreibt, wer eine auf die nachhaltige Erzielung von Einnahmen aus Leistungen ausgerichtete berufliche oder gewerbliche Tätigkeit selbstständig ausübt und unter eigenem Namen nach aussen auftritt.
Das Bundesverwaltungsgericht nimmt in seinem Entscheid zunächst Bezug auf die bundesgerichtliche Rechtsprechung zum alten Recht, bevor es auf einen in der Lehre zum neuen Recht vertretenen Ansatz eingeht und schliesslich den Bogen zur Auffassung des Europäischen Gerichtshofs (EuGH) schlägt.
Nach der Rechtsprechung des Bundesgerichts zum alten MWSTG (vgl. BGE 138 II 251) bildet die Nachhaltigkeit kein eigenständiges Kriterium, sondern sei Tatbestandselement der gewerblichen/beruflichen Ausübung der selbstständigen Tätigkeit. Demnach sprächen die folgenden Indizien für das Vorliegen einer nachhaltigen Leistungserbringung:
Unter dem neuen Recht vertritt ein Teil der Lehre, die Nachhaltigkeit sei gestützt auf quantitative und qualitative Indizien zu beurteilen.
Quantitative Indizien für eine nachhaltige Tätigkeit seien demnach: