TF, 03.24.2026, 9C_252/2024
Facts
A company (the exporter), active in the chemical manufacturing industry, organized the export of rail tank cars filled with acetic acid to Germany on four occasions between 2020 and 2022. For each shipment, the exporter electronically transmitted the goods-related information to the Federal Office for Customs and Border Security (FOCBS) via its private "Declare-it" software and the "e-dec Export" customs application.
The contracted rail transport company, B.________ AG, was responsible for physically presenting the goods and submitting the corresponding documentation, including the export lists generated by "e-dec Export," to the competent customs office. However, the transport company failed to submit these documents for the four shipments in question. Consequently, the barcodes on the export lists were never scanned by the FOCBS.
Although alerted by its own software to the impending expiration of the declarations, the exporter did not take action. After a 30-day period, the FOCBS computer system automatically deleted the pre-registered data for each export. The applications for exemption from the incentive tax on volatile organic compounds (VOCs), which were linked to these exports, were therefore never processed.
On June 9, 2022, well after the events, the exporter requested a "subsequent selection" of the export lists from the Customs District Directorate, attaching an admission of fault from the transport company. The customs authorities, followed by the FOCBS and finally the Federal Administrative Court, rejected this request, arguing that no customs declaration had been validly accepted and that the 60-day statute of limitations for subsequent taxation had expired in any case. The exporter appealed to the Federal Supreme Court, maintaining that its electronic declarations had been validly accepted upon transmission.
Law
The Federal Supreme Court reiterates that the customs clearance procedure is governed by the principle of self-declaration. A customs declaration is a mixed declaration of knowledge (regarding facts) and intent (regarding the desired customs regime), which must be received by the authority to take effect. The person subject to the declaration obligation has a duty to cooperate, which becomes a mere burden (Mitwirkungsobliegenheit) when seeking to benefit from an advantage, such as the VOC tax exemption for exported goods (art. 35a para. 3 let. c EPA).
The electronic declaration procedure ("e-dec Export") takes place in several phases: data transmission, a plausibility check by the system, acceptance of the declaration, and then selection for a potential inspection. The moment of acceptance (Annahme) is legally crucial: it makes the declaration binding for the declarant (art. 33 para. 1 CA) and establishes the point at which the tax debt arises (art. 69 let. a CA). According to art. 33 para. 2 CA, the FOCBS is responsible for determining the form and timing of this acceptance.
The Court notes that neither the law nor the ordinance precisely regulates the case of cross-border rail transport, which involves a "media break" (Medienbruch): part of the procedure is electronic (data transmission by the exporter) and another is physical (submission of documents by the carrier). The details of this hybrid procedure are found only in an FOCBS administrative directive (RL 10-10). This directive, while lacking clarity, indicates that the subject person must present the "reduced export document" (the list with the barcode) to a customs office within 30 days for scanning. Only after this scan is the selection triggered and the declaration considered accepted.
Application to the specific case
The Federal Supreme Court examines the central point of the dispute: at what moment were the export declarations "accepted"? It rejects the exporter's argument that the mere electronic transmission of data constituted acceptance.
Under the specific procedure for rail transport, the Court establishes that the declaration is a two-step process: the electronic transmission of shipment information and the physical presentation of supporting documents, specifically the export list with its barcode. The summary examination provided for inArt. 32 CA, which precedes acceptance, can only be complete once the FOCBS has all the necessary elements, including the physical documents.
Consequently, the Court concludes that, in this hybrid regime, the acceptance of the customs declaration only occurs at the moment the export document is physically presented and its barcode is scanned by an FOCBS officer. This act finalizes the submission of the declaration and renders it complete.
In this case, it is undisputed that the transport company never presented the export lists to the customs office. The declarations therefore remained formally incomplete and were never legally accepted by the FOCBS. The omission by the carrier, acting as an agent for the exporter, is directly attributable to the latter.
Therefore, the request for "subsequent selection" or "subsequent certification" was moot, as there was no accepted declaration to select or certify. The only possible path would have been a request for export taxation a posteriori. However, such a request is subject to a 60-day limitation period following export, a deadline the Court deems lawful and which, in all four cases, had been significantly exceeded. The failure to fulfill the duty to cooperate in customs matters consequently makes it impossible to assert the burden of proof regarding the conditions for VOC tax exemption.
Outcome
The Federal Supreme Court dismisses the exporter's appeal. It upholds the decision of the Federal Administrative Court, ruling that the export declarations were never validly accepted due to the failure to present and scan the required physical documents. The requests for subsequent processing were correctly refused as they were filed after the 60-day limitation period. Legal costs, amounting to CHF 12,000, are to be borne by the appellant.
Silex Tax Newsletter published in collaboration with Anna Vladau, Attorney at Law
