Federal Supreme Court, 11.12.2025, 9C_270/2025
Facts
A.________ AG holds an authorization for the "commitment procedure," which allows it to import volatile organic compounds (VOCs) with a temporary exemption from the incentive tax. An audit conducted in 2020 by the Federal Office for Customs and Border Security (FOCBS) revealed that, for twelve imports in 2016, the company had neither declared the VOC-containing goods to customs nor recorded them in its VOC balance sheets.
The FOCBS demanded the subsequent payment of the VOC tax, VAT, and default interest totaling nearly 55 million francs. The Federal Administrative Court (FAC) partially upheld the company's appeal regarding cases from 2018 based on the principle of good faith, but confirmed the subsequent assessment for the twelve 2016 cases, amounting to 35,081,848.75 francs. A.________ AG is appealing this latter part of the judgment to the Federal Supreme Court.
Legal Grounds
The Environmental Protection Act (EPA) subjects the import of VOCs to an incentive tax (Art. 35a para. 1 EPA). An exemption is possible, in particular if the VOCs are used as fuels or propellants or are treated in such a way that they cannot be released into the environment (Art. 35a para. 3 EPA).
The "commitment procedure" (Art. 21 of the Ordinance on the Incentive Tax on VOCs, VOC-O) allows for a temporary exemption from the import tax. For this exemption to become permanent, the taxable person must follow a strict two-step procedure:
- Correctly declare the goods to customs upon import, in accordance with the provisions of the Customs Act (Art. 35c para. 3 EPA).
- Maintain VOC accounts and submit an annual VOC balance sheet to the cantonal authorities within six months of the end of the financial year, proving that the VOCs were used for exempt purposes (Art. 10 and 22 VOC-O).
Failure to comply with these obligations constitutes tax evasion or tax endangerment (Art. 61a LEA), which makes the Federal Act on Administrative Criminal Law (ACLA) applicable. Art. 12 ACLA then establishes the obligation for the subsequent collection of the evaded tax.
Any potential right to a tax refund is subject to a strict six-month limitation period following the end of the accounting year (Art. 19 OVOC).
Application to the specific case
The Federal Supreme Court notes that the appellant failed to comply with either of the two steps of the commitment procedure for 2016 imports: the goods were neither declared to customs nor recorded in the VOC balance sheets. This conduct objectively constitutes tax evasion.
Consequently, the FOCBS was justified in requiring the subsequent collection of the tax based on Art. 12 ACLA. The Federal Supreme Court rejects the appellant's argument that Art. 22 para. 2 OVOC is a lex specialis; this provision only applies in cases of regular procedure, not in cases of non-declaration and evasion.
The Federal Supreme Court emphasizes that the formal rigor of customs law, expressly made applicable by Art. 35c para. 3 LEA, is an essential condition for benefiting from the exemption. The appellant cannot invoke the ratio legis of the tax to circumvent these procedural requirements.
Finally, any request for a refund is excluded. The appellant filed its corrected VOC balance sheets and refund requests in 2022, well after the expiration of the six-month limitation period following the end of the 2016 financial year (Art. 19 OVOC). The fact that the amount at stake is high does not make the subsequent collection disproportionate, as it is the direct consequence of the appellant's tax evasion.
Outcome
The Federal Supreme Court dismisses the appeal. The decision of the Federal Administrative Court is upheld. The company A.________ AG is ordered to pay the VOC tax of 35,081,848.75 francs as well as the court costs.
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