The case

Art objects that can be freely used privately are deemed to have been put to use. The lower court was correct in refusing to refund the import tax on the grounds of re-exportation; dismissal of the appeal of the applicant company. Federal Administrative Court, 23 December 2020 (A-6843/2018) French.

Source: taxblog and Federal Administrative Court A-6843/2018, 23.12.2020 (French)

The commentary

Art. 60 para. 1 let. a VAT Act is only applicable if the following three conditions are cumulatively fulfilled: Firstly, it must be a case of re-exportation; secondly, it must be an item that has not been passed on to a third party as part of a supply; and thirdly, it must be an item that has not been used in Switzerland. In 25 pages, the court follows a very pragmatic interpretation: (…) “If several interpretations are permissible, the one that is compatible with the Constitution must be chosen. Even though the Federal Supreme Court cannot examine the constitutionality of federal laws (cf. Art. 191 Federal Constitution of the Swiss Confederation of 18 April 1999 [BV, SR 101]), it assumes that the federal legislature does not propose a solution that is incompatible with the Constitution unless the wording or the meaning of the law clearly indicates the contrary (cf. BGE 131 II 562 con Sid. 3.5; ruling of the FAC A-3061/2018 of 4 June 2019 E. 2.3.3)”. – Judgement 3.5.2 (page 9).

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