Judgment of 7 March 2012 - Walder Wyss Ltd.

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A-6537/2010 T. On 21 July 2011 the complainant submitted a supplement to its submission dated 11 July 2011, arguing in particular that designating the counterparty to the swaps as the beneficial owner would create the very legal situation against which a number of different industry associations had warned in their statement of position on the OECD ‘Discussion Draft’. Where relevant to the tribunal’s decision, all due account is taken of the submissions of the parties in the following considerations. The Federal Administrative Tribunal takes into consideration: 1. 1.1. The Federal Administrative Tribunal adjudicates complaints against administrative decisions pursuant to art 5 of the Federal Act of 20 December 1968 on Administrative Proceedings (APA, Verwaltungsverfahrensgesetz, VwVG, SR 172.021; cf art 31 of the Federal Administrative Tribunal Act of 17 June 2005 [ATA, Verwaltungsgerichtsgesetz, VGG, SR 173.32]). SFTA decisions within the meaning of art 3 O-DTC-DK are subject to complaint to the Federal Administrative Tribunal (art 3(4) O-DTC-DK in conjunction with art 44 APA, art 31 ATA, art 32(2)(a) ATA e contrario, art 33(d) ATA). The Federal Administrative Tribunal is thus competent to hear the complaint lodged by the complainant on 13 September 2010 (as already decided with final legal effect by interim decision of the Federal Administrative Tribunal A- 6537/2010 of 11 January 2011). The complaint, lodged in good time and in the correct formal manner, is to be entered into. 1.2. The Federal Administrative Tribunal can in principle review the impugned decision in its entirety. In addition to citing the infringement of Federal law (art 49(a) APA) and incorrect or incomplete ascertainment of the legally pertinent facts (art 49(b) APA), a complainant may also object to the decision as being unreasonable (art 49(c) APA; cf André Moser/Michael Beusch/Lorenz Kneubühler, Prozessieren vor dem Bundesverwaltungsgericht, Basel 2008, s 2.149). As a matter of principle in complaint proceedings the tribunal applies the law ex officio. With the co-operation of the parties the Federal Administrative Tribunal therefore has a duty to apply the correct legal provisions to the facts as established, ie to apply what it regards as the appropriate legal rule, and to give it the interpretation of which the tribunal is convinced. The duty to apply the law ex officio means that, as complaint instance, the Federal Administrative Tribunal is not bound by the arguments advanced by the parties in support of their motions (art 62(4) APA) and may (partially) uphold an complaint for reasons other than those asserted or may uphold the impugned decision for reasons other than those put forward by the lower instance (cf decision of the Federal Administrative Tribunal BVGE 2009/61 cons. 6.1 with reference to decision of the Federal Administrative Tribunal BVGE 2007/41 cons. 2 with further refs.). 1.3. Article 29(1) Federal Constitution (Bundesverfassung, BV) states that one of the minimum requirements of constitutional due process is that decisions should be handed down within an appropriate time period. Any assessment of whether the duration of a proceeding is in line with the requirements of due process should be based by analogy on the criteria developed to adjudicate complaints on the grounds of delay of due process (cf judgment of the Federal Supreme Court 12T_1/2007 of 29 May 2007 cons. 3). The appropriateness or otherwise of the duration of a proceeding is not determined in absolute terms but with due regard to the general circumstances of each individual case (roughly, the nature, scope and complexity of the matter, Translation © Walder Wyss Ltd. 8 / 23
A-6537/2010 the conduct of the private parties and official bodies, the importance of the matter to those involved, the adjudication procedures specific to the matter, etc; cf judgments of the Federal Supreme Court BGE 130 I 312 cons. 5.1–5.2; 2C_872/2008 and 2C_873/2008 of 7 December 2009 cons. 4.1.1; 2C_642/2008 of 12 December 2008 cons. 4.1; 2C_170/2008 of 30 July 2008 cons. 3; also, extensive comments on the requirement to expedite judicial proceedings and/or delay of due process: decisions of the Federal Administrative Tribunal BVGE 2009/42 cons. 2.2; A-4683/2010 of 12 May 2011 cons. 2.1). As regards the procedural consequences of excessively lengthy proceedings, however, once the existence of an infringement of art 29(1) Federal Constitution on account of excessively lengthy proceedings has been established, there the matter must rest. For instance, an infringement of the requirement to expedite judicial proceedings in tax matters cannot result in an annulment of the tax liability, even if the length of the proceedings might seem ‘highly shocking’ (judgment of the Federal Supreme Court 2C_356/2008 of 21 November 2008 cons. 7; cf. also judgment of the Federal Supreme Court 2C_814/2010 of 23 September 2011 cons. 9 with further refs. and decisions of the Federal Administrative Tribunal A-8017/2009 of 2 September 2010 cons. 4.4, A-4072/2007 of 11 March 2009 cons. 6.2). 1.4. The right to be heard is established in art 29(2) of the Federal Constitution of the Swiss Confederation of 18 April 1999 (SR 101). It covers a number of different constitutional procedural guarantees (on this whole subject cf. also Ulrich Häfelin/Georg Müller/Felix Uhlmann, Allgemeines Verwaltungsrecht, 6th edn, Zurich/St. Gallen 2010, ss. 1672 et seq.). Firstly, it subsumes a party’s right to to take position and to be heard in advance and give its opinion on a matter in advance, ensuring that the parties involved can influence the court’s findings of the relevant facts. Specifically, a person or entity affected by a judicial proceeding is entitled in advance of any official ruling to give its opinion on all the important points pertaining to the determination of the legally relevant facts and to obtain all the requisite information from the competent authority. Secondly, the principle of the right to be heard means that the authorities have a duty to examine all legally relevant motions that are submitted (judgment of the Federal Supreme Court 5A.15/2002 of 27 September 2002 cons. 3.2) and to give reasons for their rulings and decisions (judgment of the Federal Supreme Court BGE 123 I 31 cons. 2c; decision of the Federal Administrative Tribunal BVGE 2007/21 cons. 10.2; cf. also art 35(1) APA). The motivation of a decision a ruling must be drafted in such a manner that the affected person or entity can contest it appropriately. This is possible only if both the affected person or entity and the appellate instance can gauge the extent of the scope of the decision. In this sense there must be at least a summary description of the considerations which the judicial authority used as guidance and on which it bases its decision. In this the authority may limit itself to the merits of the case deemed crucial to its decision (judgments of the Federal Supreme Court 1C_436/2009 of 3 February 2010 cons. 3.2; BGE 133 111 439 cons. 3.3; 129 I 232 cons. 3.2; 126 I 97 cons. 2b; decision of the Federal Administrative Tribunal BVGE 2009/60 cons. 2.2.2; cf. also Lorenz Kneubühler, Die Begründungspflicht, Berne 1998, pp. 22 et seq.). An infringement of the right to be heard constitutes a procedural denial of due process (judgment of the Federal Supreme Court BGE 135 I 6 cons. 2.1, 132 I 249 cons. 5). According to established court practice the right to be heard is a procedural right, such that an infringement of it results in the procedurally defective decision being quashed, irrespective of the complaint’s prospects of success (inter alia: judgment of the Federal Supreme Court BGE 126 I 19 cons. 2d/bb). According to court practice, however, an infringement of the right to be heard may be healed if the failure to grant that right (ie the omission to hear the party, give it access to case documents or state the reasons for a ruling) is remedied in complaint proceedings in which the higher Translation © Walder Wyss Ltd. 9 / 23
Page 1 and 2: Federal Administrative Tribunal Bun
Page 3 and 4: A-6537/2010 refund of withholding t
Page 5 and 6: A-6537/2010 the dividend amount. It
Page 7: A-6537/2010 counterparty would be a
Page 11 and 12: A-6537/2010 Argumentarium, in: Foru
Page 13 and 14: A-6537/2010 November 2005 cons. 3.4
Page 15 and 16: A-6537/2010 context is particularly
Page 17 and 18: A-6537/2010 applications in a forma
Page 19 and 20: A-6537/2010 identity of its banking
Page 21 and 22: A-6537/2010 a very complex matter.
Page 23: A-6537/2010 against the CHF 50,000

Judgment of 7 March 2012 - Walder Wyss Ltd.

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