Federal Supreme Court, 23.04.2026, 9C_503/2024
Facts
A.________ AG, a company registered for VAT, has as its purpose the acquisition and management of equity interests. It holds 9% of the capital of B.________ AG and has granted loans to C.________ AG. Following tax inquiries, a disagreement arose with the Federal Tax Administration (FTA) regarding the classification of these assets. In 2021, the FTA cancelled all of A.________ AG's input tax deductions for the 2018-2020 tax periods, on the grounds that the company was not engaged in entrepreneurial activity within the meaning of the VAT Act (VATA). The FTA determined that neither the 9% stake nor the loans constituted qualifying "equity interests" under the VATA, thereby stripping the company of its taxable status and its right to deductions. A claim for CHF 691,832 (plus interest) was issued. (A.a - A.d)
The appeal filed by A.________ AG with the Federal Administrative Court (FAC) was dismissed. The FAC acknowledged that an equity interest of less than 10% could, in principle, be classified as an equity interest under the VATA, but ruled that A.________ AG had failed to prove that it exercised a controlling influence over B.________ AG. It also ruled out the possibility that the loans to C.________ AG could be classified as an equity interest. A.________ AG then appealed to the Federal Supreme Court. (B.a - B.b, C)
Legal Analysis
The dispute concerns the appellant's right to input tax deduction, which requires determining whether it is subject to VAT. Tax liability arises from the pursuit of an entrepreneurial activity (Art. 10 para. 1 VATA). Such activity is defined as a professional or commercial activity carried out independently with the aim of generating sustainable income from services (Art. 10 para. 1bis VATA). (3., 3.1.1)
Art. 10 para. 1ter VATA specifies that the acquisition, holding, and sale of equity interests within the meaning ofArt. 29 para. 2 and 3 VATA constitute an entrepreneurial activity. Art. 29 para. 3 VATA defines the concept of an equity interest: "Equity interests are shares in the capital of other companies that are held as a long-term investment and allow for the exercise of a controlling influence. Any share of at least 10% of the capital is considered an equity interest." (3.2)
The Federal Supreme Court provides a detailed interpretation of Art. 29 para. 3 VATA. It notes that the text is not unambiguous regarding whether a share of less than 10% can constitute an equity interest. The historical interpretation, based on parliamentary debates, reveals that the legislature drew inspiration from corporate law (former Art. 665a CO) and aimed to treat "asset deals" and "share deals" equally for tax purposes. The 10% threshold was introduced as a presumption of controlling influence, not as an absolute floor. (3.2.3, 3.2.3.1)
The systematic interpretation, by comparison withArt. 960d para. 3 CO, confirms this approach: in commercial law, the 20% voting rights threshold constitutes a rebuttable presumption of controlling influence, but influence can be proven even with a smaller share. The teleological interpretation (based on the purpose of the rule) corroborates this result: the objective is to classify the holding of equity interests for strategic reasons, rather than as a pure financial investment, as entrepreneurial. (3.2.3.2, 3.2.3.3)
In conclusion, the Federal Supreme Court confirms that while a share of 10% or more is irrebuttably considered an equity interest, for a share of less than 10%, the taxpayer has the opportunity to prove that it meets the two cumulative conditions of the first sentence of Art. 29 para. 3 VATA: being held as a long-term investment and conferring a controlling influence. The burden of proof lies with the taxpayer. (3.2.3.4, 3.2.4.3)
Application to the specific case
The Federal Supreme Court examined whether the appellant had proven her entrepreneurial activity.
First, regarding potential consulting activity, the Court ruled that the production of a single invoice from 2021 was insufficient to demonstrate activity aimed at generating long-term revenue during the tax periods in dispute (2018–2020). A mere mention in the articles of association does not constitute sufficient proof. (3.1.3, 3.1.4)
Second, regarding the 9% stake in B.________ AG, the Federal Supreme Court had to determine whether the appellant had proven her "significant influence." The appellant submitted a heavily redacted shareholders' agreement. The Court held that, under these circumstances, it was impossible to verify the actual scope of the appellant's rights or to rule out potential restrictive clauses in the masked sections. The fact that the FTA had already raised this issue during the objection proceedings and that the appellant persisted in submitting a redacted document without offering specific and explicit evidence (such as producing the unredacted version) led the Federal Administrative Court to correctly refrain from conducting further investigations. The Federal Supreme Court ruled that the Federal Administrative Court did not violate its duty to investigate the facts (inquisitorial principle) and that its assessment of the evidence was not arbitrary. Proof of significant influence was therefore not established. (3.2.4, 3.2.4.4, 3.2.4.5, 3.2.4.6)
Third, regarding the loans granted to C.________ AG, the Federal Supreme Court upheld the position of the Federal Administrative Court. Referring to the definition in Art. 29 para. 3 of the Value Added Tax Act (VATA) and its basis in corporate law, it reiterated that the term "participation" refers exclusively to shares of share capital (equity) and not to receivables (debt). Loans therefore cannot be classified as a participation within the meaning of the VATA. (3.2.5)
Finally, the appellant cannot claim protection of good faith based on information obtained from the FTA (Art. 69 VATA). The questions asked by the appellant and the responses from the FTA concerned the method of input tax correction as a holding company, not the fundamental question of its VAT liability, which was presented as a settled fact. The information is therefore not legally binding on this point. (3.3, 3.3.1, 3.3.2)
Outcome
The Federal Supreme Court dismissed the appeal to the extent that it was admissible. It upheld the decision of the Federal Administrative Court. In the absence of proven entrepreneurial activity for the 2018–2020 periods, the appellant is not considered subject to VAT and therefore cannot claim input tax deduction. The legal costs are to be borne by the appellant. (1., 2., 4.)
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