In October 2013 the Federal Administrative Court decided that the FTA had not assessed the turnovers of a “contact bar” according to its best judgement. The number of glasses of champagne consumed by the ladies could not be equated with the number of erotic services. The court therefore referred the matter back to the FTA for a new decision. However, the FTA did not make a new decision, but appealed to the Federal Court. The Federal Court has now concluded the case and accepted the FTA’s arguments.
The judgement is interesting not only because of its statistical considerations about the erotic services. Conclusions can also be drawn from it for other (more serious) industries:
- A positive decision by the Federal Administrative Court is only the penultimate step in a process; the FTA can also appeal to the Federal Court.
- A referral back of the decision does not always mean that the FTA has to make a new decision. As in this case, the FTA can appeal and so have its decision supported by the Federal Court.
- Before the Federal Court additions to the facts are no longer admitted; the FTA’s discretionary assessment must therefore be contested with convincing counter-arguments already before the Federal Administrative Court.
The Federal Court accepted the FTA’s discretionary assessment, mainly because the taxpayer was not able to propose an alternative imposition method. There were no accounts, questioning of the (in the meantime long departed) sex workers was not possible and comparable businesses could also not be found.
The number of glasses of champagne consumed and condoms purchased can replace accounts after all.