TF, 02.03.2026, 9C_9/2026
Facts
A public limited company (hereinafter: the taxable person), active in organizing golf tournaments and operating a golf facility, was subject to an audit by the Federal Tax Administration (FTA) for the 2017 to 2020 tax periods.
The audit revealed significant deficiencies in the taxable person's documentation, notably the absence of turnover reconciliations for the four years in question, as well as other detailed supporting documents. The FTA noted significant discrepancies between the turnover reported in the VAT returns and those recorded in the commercial accounts (balance sheet and income statement).
On this basis, the FTA carried out a tax assessment adjustment, notifying the taxable person of a total additional tax liability of CHF 103,858. This adjustment concerned turnover differences, private shares, and input tax corrections (art. 28 and 29 VAT Act).
The taxable person contested this decision, subsequently producing various documents (Excel lists, invoices, etc.) to justify the discrepancies. The FTA maintained its position, considering that these documents, created after the fact, did not allow for the reconstruction of a reliable audit trail nor explain the inconsistencies. After its objection was rejected by the FTA, the taxable person appealed to the Federal Administrative Court (FAC), which also dismissed the appeal. The FAC held that the taxable person had failed to fulfill its obligation to provide turnover reconciliations and that the documents produced late had limited probative value. The taxable person then appealed to the Federal Supreme Court.
Law
The Federal Supreme Court reiterates the principles governing VAT procedure and substantive law.
- Burden of proof and assessment of evidence: In tax proceedings, the Federal Supreme Court is bound by the facts established by the previous instance (art. 105 para. 1 LTF), unless they are manifestly inaccurate (arbitrary) or based on a violation of the law. It is up to the appellant to demonstrate arbitrariness in a clear and detailed manner (qualified duty to state reasons, art. 106 para. 2 LTF). Simply presenting an alternative version of the facts is insufficient.
- VAT obligations of the taxable person: The taxable person is subject to an extensive duty to cooperate (Art. 71 VAT Act). In particular, they must maintain proper accounting records and be able to prove the accuracy of all elements relevant to VAT. A key obligation is the "finalization" of annual accounts, which includes reconciling the turnover declared for VAT purposes with the figures resulting from commercial accounting (Art. 72 VAT Act and Art. 128 para. 1 let. d VAT Ordinance). The absence of this reconciliation constitutes both a formal and a substantive breach.
- Evidentiary value of documents: Case law assigns reduced evidentiary value to documents that are not prepared at the time of the events they are intended to prove, but are created subsequently, particularly in response to a tax audit. Such documents are often viewed as self-serving evidence.
- Liability for auxiliaries (Art. 101 CO): A company is liable for the acts and omissions of its auxiliaries, such as a fiduciary or accountant. It must accept responsibility for errors committed by them and cannot discharge its liability by invoking, for example, the subsequent death of the agent.
Application to the specific case
The Federal Supreme Court notes that the taxable entity failed in its fundamental obligation to provide turnover reconciliations for the periods in dispute. This failure justified the FTA's decision to base its VAT assessment corrections on the taxable entity's commercial accounts (income statement), which are presumed to comply with accounting standards. This method is not open to criticism.
The taxable entity attempts to challenge the figures used by the FTA by presenting data extracted from its golf management software ("PC-Caddie"). The Federal Supreme Court rejects this argument for several reasons:
- The figures presented are isolated and cannot be traced back to the company's authentic accounting records.
- The taxable entity merely contrasts its own figures with those of the FTA without demonstrating how the Federal Administrative Court's assessment of the evidence, which was based on the official income statement, would be arbitrary. It therefore fails to meet its obligation to provide qualified reasoning.
The Federal Supreme Court analyzes the most striking example in detail: revenue of CHF 904,660.37 recorded in 2020 under the item "Ball cards" ("Ballkarten"). Although this amount appears economically implausible compared to ball token revenue (CHF 17,230.35), the Federal Supreme Court emphasizes that this figure originated from the taxable entity's own income statement. The FTA was therefore entitled to rely on it. Even if it is an accounting error, the taxable entity must accept it.
The argument that the former fiduciary responsible for this accounting has passed away is dismissed. Under Art. 101 CO, the taxable entity is liable for the errors of its agent.
Finally, the Court confirms the Federal Administrative Court's analysis that the documents produced late by the taxable entity have limited evidentiary value, as they were clearly created for the purposes of the case following the tax audit.
Outcome
The Federal Supreme Court dismisses the appeal to the extent that it is admissible. It upholds the judgment of the Federal Administrative Court and, consequently, the additional tax claim of CHF 103,858 in favor of the FTA. Legal costs are charged to the taxable entity (the appellant).
Silex tax newsletter published in collaboration with Anna Vladau, Attorney at Law
