Partial revision of the Value Added Tax Act

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