Federal Supreme Court, 06.18.2026, 2C_651/2024
Facts
On March 20, 2023, the Dutch tax authority submitted a request for administrative assistance to the Federal Tax Administration (FTA) based on the Double Taxation Convention between Switzerland and the Netherlands (DTC CH-NL). The request sought information regarding A.________ (the taxpayer) for the tax period from March 1, 2010, to December 31, 2021, concerning two bank accounts held at B.________ AG, one in the taxpayer's name and the other in the name of a company, C.________, of which he is the beneficial owner. The request covered a wide range of documents, including account opening documents, identification papers, and statements of assets and accounts. (Sachverhalt A, A.a, A.b)
In the absence of the taxpayer's consent, the FTA issued final decisions ordering the transmission of the information. The taxpayer appealed these decisions to the Federal Administrative Court (FAC), requesting that the decisions be annulled or, alternatively, that all data prior to March 1, 2010, be redacted. The FAC partially upheld the appeal, ordering the FTA to redact the version dates of bank forms, the issuance and expiration dates of the taxpayer's passport, and the date of formation of a trust mentioned in the documents. (Sachverhalt B, B.a, B.b, B.c)
The FTA filed a public law appeal with the Federal Supreme Court, requesting the annulment of the FAC's judgment insofar as it imposed these specific redactions. The Federal Supreme Court ruled that the question of whether such data must be systematically redacted was of fundamental importance, justifying the admission of the appeal. (Sachverhalt C, consid. 1.2, 1.3, 1.4)
Legal Analysis
TheArt. 26 para. 1 of the DTC CH-NL provides for the exchange of information that is "foreseeably relevant" to the administration or enforcement of the tax laws of the contracting states. The Additional Protocol clarifies that this concept is intended to ensure the widest possible exchange of information while prohibiting "fishing expeditions," i.e., requests for information whose relevance is improbable. (consid. 3.2)
According to established case law, the criterion of foreseeable relevance is met when there is a reasonable possibility that the requested information will prove relevant. The requested state should not judge the actual relevance of the information to the tax investigation conducted by the requesting state. It may only refuse assistance if any link between the information and the tax investigation appears excluded from the outset. In accordance withArt. 17 para. 2 of the Tax Administrative Assistance Act (TAAA), information that is clearly not relevant must be excluded or rendered unrecognizable. (consid. 3.3, 3.3.1)
Regarding documents created before the period covered by the request (e.g., account opening documents), they must be transmitted if they continue to govern the client relationship during that period. However, information contained in these documents whose relevance to the tax period in question is improbable must be redacted, particularly dates referring to periods prior to that of the request. The exact scope of this redaction obligation for certain specific data had not yet been clarified. (consid. 3.3.2, 1.3)
Application to the specific case
The Federal Supreme Court examines whether the redaction instructions issued by the Federal Administrative Court (FAC) are compatible with the objective of a broad and effective exchange of information. (consid. 3.5)
First, regarding the version dates of bank forms, the Federal Supreme Court finds that they generally do not allow for clear conclusions to be drawn about the account opening date. These dates lack consistency, vary from one bank to another, and therefore have no significant probative value. Redacting them provides no tangible benefit to the person concerned but creates a significant administrative burden for the FTA, which is contrary to the principle of procedural efficiency (art. 4 para. 2 TAA). The effort required is disproportionate to the interest being protected. As a general rule, such redaction should therefore be waived. (consid. 3.5.1, 3.5.2, 3.5.3, 3.5.4)
Second, regarding passport issuance and expiration dates, the Federal Supreme Court rules that redacting them would exceed the scope of the plausibility check assigned to the requested state. These dates can be relevant factors in determining tax domicile, a substantive issue that falls under the exclusive jurisdiction of the requesting state's authorities. Prejudging their relevance would amount to encroaching upon the prerogatives of the requesting authority. With a view to a complete and effective exchange of information, these should therefore not be redacted. (consid. 3.6)
Third, regarding the trust's date of establishment, the Federal Supreme Court considers the FAC's reasoning to be too brief. This date is a potentially important identification element, particularly for distinguishing between trusts with similar names. Since the trust appears in the bank documents and the request is formulated broadly, it is likely relevant for the requesting authority to have this information to clarify the taxpayer's tax situation. Asserting otherwise exceeds the scope of a plausibility check. (consid. 3.7)
In conclusion, the Federal Supreme Court finds that the obligation to redact bank form version dates, passport dates, and the trust's date of establishment, as imposed by the FAC, is contrary to the principle of an exchange of information that is as broad and effective as possible, and thus violates Art. 26 of the CH-NL DTA. (consid. 3.8)
Outcome
The Federal Supreme Court allows the appeal by the Federal Tax Administration. It sets aside the Federal Administrative Court's judgment of December 12, 2024, regarding the redaction instructions for bank form version dates, passport issuance and expiration dates, and the trust's date of establishment. (consid. 1, 4.1)
The court costs for the federal proceedings, amounting to CHF 5,000, are charged to the taxpayer (respondent). No legal costs are awarded. (consid. 2, 4.3)