TF, 21.05.2026, 9C_89/2026
Facts
A. AG submitted its VOC (Volatile Organic Compounds) balance sheet for the 2023/2024 financial year to the Federal Office for Customs and Border Security (FOCBS), requesting a refund of the incentive tax amounting to CHF 220,269. Following verification and minor corrections, the FOCBS granted this amount on July 1, 2025. On July 11, 2025—after the end of the financial year (June 30, 2024) and after the six-month deadline for filing the application had passed—A. AG appealed to the Federal Administrative Court. It presented a corrected VOC balance sheet, explaining that an error had been made in accounting for transactions with a sister company, and claimed an additional refund of CHF 83,727.60. The Federal Administrative Court rejected the appeal, deeming the additional request to be time-barred. A. AG then appealed to the Federal Supreme Court. (Facts A, B, and C)
Legal Analysis
The incentive tax on VOCs is governed by the Environmental Protection Act (EPA) and the Ordinance on the Incentive Tax on Volatile Organic Compounds (OVOC). Anyone who imports or manufactures VOCs is, in principle, liable for the tax (Art. 35a para. 1 EPA). Exemptions are possible, particularly if the VOCs are used in a way that does not pollute the environment (Art. 35a para. 3 EPA). If the conditions for exemption are proven after the tax has been paid, it is refunded (Art. 35c para. 2 EPA). To obtain a refund, the taxable entity must maintain accounts and prepare a VOC balance sheet (Art. 10 para. 1 OVOC).Article 19 OVOC, titled "Expiry of the right to a refund," is central to this case. Paragraph 1 stipulates that refund applications must be submitted within six months of the end of the financial year, with the possibility of an extension. Paragraph 2 provides that the right to a refund expires in all cases two years after the grounds for the refund arise. The legal classification of the six-month deadline in Art. 19 para. 1 OVOC as a preclusive time limit is at the heart of the dispute. (Consid. 3.1, 3.2, 3.3, 4.1)
Application to the case
The Federal Supreme Court examined whether the lower court was correct in classifying the six-month deadline under Art. 19 para. 1 OVOC as a preclusive time limit, resulting in the loss of the right to an additional refund. The appellant argued that it was not a preclusive time limit, contending that the term "expires" only appears in paragraph 2 and that the possibility of extending the deadline in paragraph 1 is incompatible with the nature of a preclusive time limit. The Federal Supreme Court rejected these arguments. It emphasized that the marginal note of Art. 19 OVOC ("Expiry of the right to a refund") applies to the entire article, including paragraph 1. The legislature clearly intended to set an absolute limit for asserting the right to a refund. The fact that a preclusive time limit can be legally extended by a specific provision does not contradict its nature. The Court clarified that the two paragraphs of Art. 19 OVOC serve complementary purposes: paragraph 1 ensures rapid settlement by setting a filing deadline under penalty of forfeiture, while paragraph 2 sets an absolute two-year time limit, even if the application is filed within the six-month window. The Court also dismissed the comparison with the commitment procedure (Art. 22b OVOC), which serves a different objective (verifying a provisional exemption) and does not allow for conclusions to be drawn in this case. As the appellant submitted its corrected balance sheet and request for an additional refund on July 11, 2025—after the preclusive deadline of December 31, 2024 (six months after the end of the financial year on June 30, 2024)—its right to the additional amount has expired. The lower court therefore did not violate the law by refusing to consider the late corrected balance sheet. (Consid. 4.1, 4.2, 4.3.1, 4.3.2, 4.3.3, 4.3.4)
Outcome
The Federal Supreme Court rejected A. AG's appeal. It upheld the decision of the Federal Administrative Court, ruling that the right to an additional refund had expired due to the corrected application being filed after the six-month deadline provided for in Art. 19 para. 1 OVOC. The legal costs are to be borne by the appellant. (Consid. 1, 2, 5 and Operative Part)
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