Federal Supreme Court, 17.07.2026, 2C_412/2026
Facts
The German central tax authority submitted a request for administrative assistance to the Federal Tax Administration (FTA) based on the Double Taxation Convention between Switzerland and Germany (CH-DE DTC). This request concerned the German company B.________ GmbH and the Swiss company A.________ SA for the years 2019 to 2021. During a tax audit of B.________ GmbH, the German authorities examined transfer pricing within the A. group. They deemed it necessary to obtain information regarding the functions, risks, and financial data of A. SA to assess whether the transfer prices applied complied with the arm's length principle. On October 9, 2025, the FTA issued a final decision granting administrative assistance. A.________ SA and B.________ GmbH appealed this decision to the Federal Administrative Court (FAC). In a judgment dated June 19, 2026, the FAC partially upheld the appeal, ordering the redaction of 2018 financial data, but dismissed the remainder of the appeal. A.________ SA then filed a public law appeal with the Federal Supreme Court, seeking the annulment of the FAC judgment and the FTA decision, and requesting that administrative assistance be denied. (A., B., B.a., B.b., C.)
Legal Analysis
The Federal Supreme Court examines its jurisdiction and the admissibility of an appeal ex officio and with full power of review. Pursuant toArt. 83(h) of the Federal Supreme Court Act (FSCA), appeals against decisions concerning international administrative assistance are inadmissible, with the exception of administrative assistance in tax matters. For this specific area, Art. 84a FSCA makes the admissibility of an appeal conditional upon the existence of a legal question of principle or a case of particular importance within the meaning ofArt. 84(2) FSCA. It is incumbent upon the appellant to demonstrate how this condition is met, unless it is manifest. A legal question of principle is recognized when clarification by the highest judicial authority is required, particularly if the decision can serve as a guide for practice and for numerous similar cases, or if it involves a novel question or one for which re-examination is justified. (consid. 1, 1.1)
Application to the Case
The appellant (A.________ SA) argues that the case raises a legal question of principle. It asks the Federal Supreme Court to determine whether information can be considered "available" within the meaning of the CH-DE DTC and the Tax Administrative Assistance Act (TAAA) when the requesting authority does not allege any specific service provision or transaction between the Swiss information holder and the foreign taxpayer. According to the appellant, mere membership in a group of companies is insufficient to establish an extended obligation to cooperate underArt. 126 of the Federal Direct Tax Act (FDTA), but rather a limited obligation (Art. 127-129 FDTA). The Federal Supreme Court notes, however, that it has already addressed the scope of a Swiss company's obligation to cooperate in the context of an administrative assistance request in the landmark judgment BGE 142 II 69. It was established therein that the question of whether a company is an "affected" person or a mere information holder must be examined in light of Art. 126 FDTA, and that the extended obligation under Art. 126 FDTA applies if the requested information could influence its own taxation. The question of whether the appellant's tax situation could be affected and, consequently, which regime of the obligation to cooperate applies, can be resolved through the application of this established case law. The fact that the appellant is a group company does not give the case a significance that transcends the individual instance. Consequently, the Federal Supreme Court concludes that the case does not raise a legal question of principle within the meaning of Art. 84a FSCA. (consid. 1.2, 1.3, 1.4)
Issue
The Federal Supreme Court ruled that the admissibility requirement set out in Art. 84a of the Federal Supreme Court Act (FSCA)—namely, the existence of a legal question of principle—was not met. Consequently, it declared the public law appeal inadmissible. The court costs, set at CHF 5,000, are to be borne by the appellant. No party compensation is awarded. (recitals 1.5, 2., and operative parts 1., 2.)