SIF (Swiss Institute of International Finance) published on 12 April 2022 that the COVID agreement in the area of taxation between Germany and Switzerland will be terminated as of 30.6.2022 (available in German, French and Italian): https://www.estv.admin.ch/dam/estv/de/dokumente/international/laender/deutschland/de-dba-kv-20220411.pdf.download.pdf/de-dba-kv-20220411.pdf
The taxation fiction with the right of choice for the taxpayer was an important approach during the pandemic for companies in Switzerland employing cross-border workers from Germany. The termination letter mentions that this special agreement is no longer necessary to combat the COVID 19 pandemic that restrict or impede the access of workers to the company workplace. This also makes it clear that for the period until 30.6.2022, pandemic-related restrictions must exist at the companies in order to be able to apply the taxation fiction on a case-by-case basis. Otherwise, the usual rules apply and have already applied.
Consequently, it is important that companies deal with the consequences if they continue to grant/have granted home office to employees in whole or in part without pandemic restrictions. This involves many areas of law, such as social security law, contract law, labour law, tax law, data protection law, insurance law, which should also be taken into account.
Recently, publications with incorrect content regarding the calculation of withholding taxes have been published. The following explanations are based on several consultations with competent authorities:
Genuine (“echter”) cross-border commuter Germany:
If a cross-border commuter returns home every day, the way to work (100 km or 1.5 hours each way) is reasonable and he/she brings a valid certificate of residence to the employer, the employer may withhold up to 4.5% (or fixed 4.5% depending on the canton) withholding tax and pay it to the competent withholding tax authorities.
A home office day is not a non-return day and does not affect the change of status from genuine to non-genuine cross-border worker. Home office days have not been eliminated in the calculation of withholding taxes so far because it is a lump sum. It is not known whether there will be negotiations and thus an adjustment in the foreseeable future.
Non-genuine (“unechter”) cross-border commuter Germany:
If a cross-border commuter does not return to his/her place of residence for more than 60 days for work-related reasons (non-return day), he/she loses the status of genuine cross-border commuter and the employer must take into account the normal withholding tax rate for the entire calendar year. A reduction of the withholding tax base by the working days abroad should then be made for this non-genuine cross-border commuter in the corresponding month.
In the recently published new edition of the withholding tax book, the various cross-border commuter agreements (without special agreements due to the pandemic) are explained in detail (only available in German) https://www.zulaufgmbh.ch/publikationen-referententatigkeiten/.
In addition, the seminar on cross-border commuters and international weekly commuters in the home office during and after the pandemic – tensions between new normal and risks for the companyhttps://www.zulaufgmbh.ch/kurse/grenzgaenger-und-internationale-wochenaufenthalter-im-homeoffice-nach-der-pandemie-spannungsfeld-zwischen-new-normal-und-risiken-fuer-die-unternehmung/ will be held (in German) again on 29. and 30.6.2022 each afternoon. I will present the various legal areas.