Judgment of 7 March 2012 - Walder Wyss Ltd.

A-6537/2010
The facts:
A.
On 2 August 2007 A.____________A/S submitted applications no 13855, no 13856 and no
13857 (form 89) for refund of withholding tax in respect of dividends falling due in 2007 in the
total amount of CHF (…). By letter dated 16 October 2007 the Federal Tax Administration
(SFTA) requested information on various securities positions.
B.
On 27 November 2007 A.____________A/S submitted in particular a list of its holdings of Swiss
equities in the past two years. Further, it stated that it effected sales and purchases of the
securities concerned only via recognised market participants. By letter dated 13 December
2007 the SFTA requested further information. In particular, it called on A.____________A/S to
furnish details of transactions that had been hedged by means of derivatives and had had a
duration of less than one month.
C.
A.____________A/S complied with this request on 21 December 2007. It stated in particular
that the hedged transactions had had an average holding period of six months. There had been
no case in 2007 in which the holding period was less than one month. By e-mail dated
21 December 2007 the SFTA asked for additional details on three selected transactions.
A.____________A/S replied by e-mail on 29 January 2008 that the three transactions were
swap transactions and gave further information on them, but that under Danish law it was not
permitted to disclose the names of its clients.
D.
By e-mail dated 14 February 2008 the SFTA asked A.____________A/S in particular to furnish
a list of all its swap transactions (with anonymised counterparties). Following further e-mail
correspondence A.____________A/S replied on 17 June 2008 that all the securities relating to
the applications for refunds dated 2 August 2007 had been purchased in order to hedge swap
transactions. It submitted a sample swap agreement for the attention of the SFTA.
E.
Following a further exchange of e-mails and letters, on 3 October 2008 A.____________A/S
stated that conducting swap transactions formed part of its core business, that the equity
baskets in the swap agreements were not always fully hedged, and that the swap agreements
were concluded for the entire year. By e-mail dated 6 November 2008 the SFTA announced
that the information supplied was insufficient and that the SFTA required in particular the
original agreements. Consequently, on 10 December 2008 A.____________A/S submitted
anonymised swap agreements and the relevant share purchase and sale settlements.
F.
By letter dated 11 March 2009 the SFTA rejected the refund applications no 13855, 13856 and
13857 in the total amount of CHF (…) in their entirety. It further rejected the application for
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