M v Cantonal Appeals Commission of Berne

CourtFederal Tribunal (Switzerland)
Switzerland, Federal Tribunal (Administrative Law Chamber)
Cantonal Appeals Commission of Berne

International organizations Immunity Officials United Nations Second category officials Fiscal exemption Switzerland-United Nations Headquarters Agreement, 1946, Article V, Section 15(b) Vienna Convention on Diplomatic Relations, 1961, Articles 34 and 38 Whether exemption extends to Swiss nationals domiciled abroad Advance tax deduction Reimbursement for various categories of exempted persons Expert attached to Office of Technical Cooperation for work in Gabon Entitlement to reimbursement

Diplomatic relations Immunity Vienna Convention on Diplomatic Relations, 1961 The law of Switzerland

Summary: The facts:M, a Swiss national, was seconded in 1973 to work as an expert attached to the United Nations Office of Technical Co-operation in Gabon. He appealed against a decision by the Swiss cantonal tax authorities that he was not entitled to reimbursement of advance tax deducted from sums payable in Switzerland during his period of service abroad. He argued that he was exempted from tax by Article V, Section 15(b) of the Switzerland-United Nations Headquarters Agreement, 1946.

Held:The appeal was dismissed.

(1) The right to reimbursement of advance tax was given to various categories of persons who, being domiciled or permanently resident in Switzerland, were in principle subject to Swiss tax but had been exempted for specific reasons, as was the case with officials of international organizations resident in Switzerland, under the provisions of the Switzerland-United Nations Headquarters Agreement.

(2) Natural persons domiciled abroad, as the appellant had been during the period of his secondment, could not in principle claim reimbursement of advance tax because they were not taxable in Switzerland. For such persons, advance tax represented a special and final fiscal imposition, subject however to the rules contained in international conventions designed to avoid double taxation. No such convention existed between Switzerland and Gabon.

(3) The provision of the Headquarters Agreement upon which the appellant sought to rely did not alter the position since it could not exempt him from a tax to which he was not subject. Neither could he rely on the exemption from taxation contained in Article 34 of the Vienna Convention on Diplomatic Relations, 1961, since this only covered senior officials, a category to which he did not belong. Moreover, as a Swiss...

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