Tax Treaty Case Law around the Globe 2017

S. 389Switzerland: Demarcation between an Acceptable Group Request and an Unacceptable “Fishing Expedition”

Lysandre Papadopoulos

1. S. 390Introduction

“Contracting States are not at liberty to engage in ‘fishing expeditions’ or to request information that is unlikely to be relevant to the tax affairs of a given tax payer.”

In the context of this wording from the OECD Model, the Belastingdienst (requesting state or Dutch authorities) filed a request that raised some questions with respect to the prohibition of so-called fishing expeditions. The request the Federal Supreme Court (FSC) had to deal with in the case at stake not only concerned numerous potential Dutch taxpayers, it also aimed at obtaining both the identities (in particular the name) and information on banking assets held by these people. At the first instance level, the Federal Administrative Tribunal (FAT) quashed the decision of the Swiss Federal Tax Administration (SFTA) to transmit the information to the Dutch authorities. Conversely, at the second instance level, the FSC confirmed the decision of the SFTA.

The following contribution will deal with the facts of the case (II), the FSC's reasoning (III), and comments related to the c...