Under the current VAT Act, the right to deduct input VAT is broadly defined. Accordingly, the taxable person can in principle deduct the in- put VAT invoiced to him and paid by him within the scope of his busi- ness activity, Art. 28 para. 1 MWSTG. However, one of the require- ments is that the input tax was incurred as part of the taxable person's "entrepreneurial activity". Naturally, this raises the question of how to distinguish between entrepreneurial and non-entrepreneurial activities.
In its judgement 9C_651/ 2022, the Federal Supreme Court dealt with this distinction between the entrepreneurial and non- entrepreneurial spheres and the corresponding consequences for input VAT deduction.
BACKGROUND
The complainant in the underlying dispute was an association whose purpose was to support and promote ecclesiastical and charitable causes in Switzerland and abroad. In order to achieve its purpose, the association organised Christian musicals. Approximately 70% of the musicals were financed by donations and no admission fees were charged.
In addition to the income from donations, the association also generated income from services, such as the sale of food in connection with the musicals, the sale of other items (e.g. books; T- shirts), from publicity services (sponsoring) in favour of companies and accommodation services. On the occasion of a VAT inspection, the FTA denied the association an input VAT deduction in connection with the organisation of the musicals. The association appealed against this.
DECISION OF THE FEDERAL SUPREME COURT
The Federal Supreme Court refers to its previous case law, according to which a corporate body can also maintain a non-entrepreneurial sphere in addition to the entrepreneurial sphere. However, account must be taken of the fact that the company is, in principle, an economic unit to which all activities related to the entrepreneurial activity must be allocated.A possible non-entrepreneurial sphere is therefore characterised by the fact that the business unit in question either does not generate any income from services or at least does not generate such income in a sustainable manner. An independent non-entrepreneurial sphere can therefore only be assumed if the separation can be made sufficiently clear - whether this is due to a separate activity that is clearly recognisable to the outside world or a clear purpose that differs from that of the entrepreneurial activity. If this is not the case, the principle of the "unity of the company" remains with a single, entrepreneurial sphere.
In the present case, the main purpose of the organisation of the Christian musicals is the non-profit or idealistic activity of the association - and not the sale of food, books or T-shirts or the provision of publicity and accommodation services. With the musicals, the association therefore pursues ide- alistic purposes and not the generation of income. In this respect, entrepreneurial activity is there- fore lacking.
This means that the idealistic purpose of the musical performances can be clearly distinguished from that of the association's entrepreneurial activities (sale of food, etc.) and a separation can be made between the rather small entrepreneurial sphere and the significantly larger non-entrepre- neurial sphere. The close factual link between the entrepreneurial and non-entrepreneurial activi- ties is irrelevant: The association does not perform the musicals in order to promote its entrepre- neurial activities, but merely uses the (ideally motivated) performances as an opportunity to carry out a subordinate entrepreneurial activity.
CONCLUSION
As a result, the Federal Supreme Court confirms its previous case law on the distinction between the entrepreneurial and non-entrepreneurial sphere. The argumentation appears to be driven to a significant extent by considerations of achieving "unfair" tax advantages by using a comparatively subordinate business area in order to be able to deduct input tax incurred in the supposedly non- entrepreneurial sphere.
