TF, 04.24.2026, 2C_198/2026
Facts
On May 5, 2022, the U.S. Internal Revenue Service (IRS) submitted a request for administrative assistance to the Federal Tax Administration (FTA) concerning a couple of taxpayers. The IRS suspected them of concealing income through a complex structure involving several companies, including A.________.
The request concerned information for the 2010-2021 period. The FTA granted assistance for the entire period.
Company A.________ appealed to the Federal Administrative Court (FAC), arguing that the request for the years 2021 and 2022 was premature, as the tax filing deadlines had not yet passed.
The FAC ruled in favor of A.________. It held that for the years 2021 and 2022, the IRS had not respected the principle of subsidiarity (failing to exhaust its own investigative means before requesting assistance from Switzerland). The FAC therefore ordered the FTA to remove information relating to those two years.
The FTA then appealed this decision to the Federal Supreme Court (FSC).
Law
In matters of administrative tax assistance, an appeal to the Federal Supreme Court is only admissible under strict conditions (art. 84a LTF). The case must raise a legal question of principle or constitute a particularly important case.
A case is considered particularly important, in particular, when the lower court deviates from established case law or when the case has exceptional significance. Conversely, a mere erroneous application of case law in a specific instance is generally not sufficient to justify the Federal Supreme Court hearing the case.
Furthermore, a decision refusing administrative assistance does not have the authority of res judicata. The requesting state may always submit a new request at a later date.
Application to the specific case
The FTA argued that the FAC had erroneously applied the FSC's case law regarding the principle of subsidiarity, creating major legal uncertainty.
The Federal Supreme Court did not share this view. It held that the FTA was not accusing the FAC of a change in case law, but simply of a misapplication of it to the specific case. Correcting such an application is not the role of the FSC in this area, except in exceptional circumstances which were not met here.
The FSC also noted that the FTA had not demonstrated how this decision would have a major impact on its future practice.
Finally, the FSC reiterated that the refusal to grant assistance for 2021-2022 was not final. The IRS retains the option to submit a new request for these periods, which will then be examined based on the situation at that time.
Outcome
The Federal Supreme Court has declared the FTA's appeal inadmissible.
It did not rule on the merits of the case (specifically, whether or not the Federal Administrative Court correctly applied the principle of subsidiarity).
The Federal Administrative Court's decision therefore stands: information regarding the years 2021 and 2022 must not be transmitted to the United States in connection with this request.
Silex newsletter published in collaboration with Elisabetta Tizzoni
