Judgment of 7 March 2012 - Walder Wyss Ltd.

A-6537/2010
cost note, the court has the task of verifying the extent to which the claimed costs may be
recognised as necessary for the party’s legal representation (art 7 et seq. Regulations of
concerning Costs and Reimbursements in Federal Administrative Tribunal Proceedings). In
other words, unnecessary input is not reimbursed, as laid down by way of supplement in
art 8(2) Regulations concerning Costs and Reimbursements in Federal Administrative Tribunal
Proceedings.
9.3. In respect of the instant complaint proceeding the complainant submitted detailed cost
notes on 29 December 2010, 6 June 2011 and 12 July 2011 in a combined amount of CHF (…).
Since these cost notes are sufficiently detailed (cf. Moser/Beusch/Kneubühler, op. cit., s. 4.85),
they may serve as the starting point.
9.3.1. The tribunal must first examine the hourly rates on which the cost notes are based. These
are: for representation by attorneys-at-law a rate of CHF 650 per hour, and for non-attorney
representation hourly rates of CHF 650, CHF 400, CHF 340 and CHF 220. Given the size of the
amount in controversy—approx. CHF (…)—there is justification for increasing the permissible
hourly rate for representation by attorneys pursuant to art 10(3) Regulations concerning Costs
and Reimbursements in Federal Administrative Tribunal Proceedings to a maximum of CHF
450. Hence the maximum hourly rate for representation by attorneys to be applied to the cost
note submitted by the complainant is reduced from CHF 650 to CHF 450. Furthermore the
hourly rate for non-attorney professional representation is set at CHF 300. After these
adjustments, further consideration of costs is based on a cost note in the amount of CHF (…)
([…] hours @ CHF […] plus […] hours @ CHF 300 plus […] hours @ CHF 220).
9.3.2. The next step is to assess the proportion of the claimed expense that is eligible for
reimbursement under the relevant provisions and regulations. The costs incurred by the parties
are only considered necessary if they appear to be indispensable to the appropriate, effective
pursuit of or defence against legal action. Although the Federal Administrative Tribunal is
generally minded to exercise a certain degree of restraint when making this assessment (cf.
Moser/Beusch/Kneubühler, op.cit., ss. 4.68 and 4.86), both the reply submitted by the
complainant on 26 November 2010 and the surrejoinder dated 28 December 2010 appear to be
particularly unnecessary within the meaning of the aforementioned norms (cf. cons. 9.2). The
assertions made by the complainant here on the issue of jurisdiction—an issue which the
tribunal must address ex officio—are by definition unnecessary, and in substantive terms these
two submissions fail to add anything to what was already in the complaint submission.
Consequently the amount claimed is reduced accordingly, taking the amount in consideration
down to CHF (…) ([…] hours @ CHF 450 and […] hours @ CHF 300).
9.3.3. Finally, because the complaint is only partially upheld, the total reimbursement amount
resulting from this calculation is further reduced to CHF […].
Accordingly, the Federal Administrative Tribunal finds:
1.
The complaint is partly upheld in accordance with the above considerations. The decision of the
Federal Tax Administration of 29 July 2010 is set aside. The Federal Tax Administration is
ordered to grant the following withholding tax refunds to the complainant: CHF (…) (application
no 13855), CHF (…) (application no 13856), CHF (…) (application no 13857) and CHF (…)
(application no 279535).
2.
Of the court costs of CHF 50,000 the complainant is ordered to pay CHF 5,000, to be set off
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