Swiss Federal Supreme Court, 27.01.2026, 9C_654/2025
Facts
After the Federal Tax Administration (FTA) declined to consider a request from A.________ AG, the company appealed to the Federal Administrative Court (FAC). In an interlocutory decision dated September 11, 2025, the FAC ordered the company to pay an advance on costs of CHF 1,000 by October 2, 2025, failing which the appeal would be deemed inadmissible.
The company failed to pay the advance within the prescribed time limit. It informed the FAC that it had only collected the registered letter on October 9, 2025, after extending the postal holding period. Consequently, the FAC declared the appeal inadmissible in a judgment dated November 5, 2025. A.________ AG filed a public law appeal with the Federal Supreme Court, requesting that this judgment be set aside.
Legal Analysis
The Federal Supreme Court reiterates the principle of constructive service. A registered letter that cannot be delivered is deemed served on the seventh day after the first unsuccessful delivery attempt. This legal fiction applies even if the postal holding period is longer, particularly when the recipient has requested an extension. A party that has initiated legal proceedings must expect to receive communications from the authority and take the necessary steps to ensure that mail reaches them.
Furthermore, a request for a declaratory judgment is only admissible if the appellant has a legitimate interest in such a declaration, which is generally not the case when a claim for performance or a constitutive ruling can achieve the same result (subsidiarity of declaratory actions). Finally, allegations of violations of fundamental rights must meet specific substantiation requirements (Art. 106 para. 2 LTF).
Application to the Case
The Federal Supreme Court rules that the appellant's request to declare the application of constructive service illegal is inadmissible due to a lack of a legitimate interest.
On the merits, the Federal Supreme Court upholds the FAC's analysis. The interlocutory decision was sent by registered mail on September 11, 2025, and a collection notice was issued on September 12, 2025. Under the principle of constructive service, the decision is deemed to have been served on September 19, 2025 (the seventh day). The fact that the appellant itself extended the postal holding period and only collected the letter on October 9, 2025, does not alter this date of constructive service. The appellant provided no evidence of any error on the part of the postal service or the authority.
The claims regarding a violation of the right to be heard (Art. 29 para. 2 Cst.) and the right of access to a court (Art. 29a Cst.) are dismissed. Firstly, they do not meet the requirements for specific substantiation. Secondly, the FAC was not required to rule on the merits of the dispute, as its decision of inadmissibility was procedural in nature and based on the failure to pay the advance on costs. The Federal Supreme Court also notes that, in principle, a legal entity is not entitled to free legal aid.
Outcome
The Federal Supreme Court dismisses the appeal to the extent that it is admissible. The court costs, amounting to CHF 1,000, are to be borne by the appellant.
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