Background
In 2022/2023, the countries applying the Agreement on the Free Movement of Persons 883/2004 were looking for a solution to allow employees residing in a country other than the normal country of employment to telework to a greater extent than provided for in the basic regulation. A framework agreement on teleworking was negotiated. The countries are free to sign this.
If the other requirements are met (work only in the employer’s country and teleworking in the country of residence, no other activities), employees may telework up to less than 50% in their country of residence with the employer’s consent. The prerequisite is that the employer country and the country of residence have signed the framework agreement.
For further details, please consult the following blog: https://www.zulaufgmbh.ch/en/social-security-update-on-telework-in-the-scope-of-the-ch-eu-and-ch-efta-agreements-on-the-free-movement-of-persons/ and https://www.zulaufgmbh.ch/en/news-as-of-1-7-2023/
Italy has also signed the framework agreement with effect from 1 January 2024. How should this be interpreted in the overall context for employers in Switzerland with employees domiciled in Italy?
The below requirements apply in the following cases:
- Swiss or EU nationality
- Ordinary activity in Switzerland and regular teleworking at the place of residency in Italy
- No habitual activities in another EU country
- No business trips outside Switzerland and the EU
In addition, a managerial activity or sales activity must be excluded in order to avoid the creation of a permanent establishment for tax purposes of the Swiss company in Italy.
Employees with a canton of employment anywhere in Switzerland and residency in Italy without daily return (international weekly residents) or no cross-border commuters for tax purposes under the 2020 cross-border commuters agreement in the cantons of Graubünden, Ticino and Valais
Teleworking is possible from 1 January 2024 up to <50% from a social security perspective without changing the social security status to Italy. However, this must be applied for retroactively by the end of June 2024 at the latest.
Please refer to the following blog regarding the application process: https://www.zulaufgmbh.ch/en/when-is-an-a1-required-for-teleworking-and-where-is-it-applied-for-explanations-on-the-wvp-2024-and-more/
Switzerland is not allowed to tax the working days worked outside Switzerland (separation of foreign working days in the withholding tax procedure).
Employees working in the cantons of Grisons, Ticino or Valais who are considered cross-border commuters for tax purposes in accordance with the 2020 cross-border commuters agreement between Switzerland and Italy (old and new)
The situation in this case is different. According to the mutual agreement between Switzerland and Italy, genuine cross-border commuters subject to tax law may work a maximum of 25% from home without any change in taxation in neither Switzerland nor Italy. If this limit is exceeded, they become non-genuine cross-border commuters and the explanations above regarding weekly residents apply in this case. For the company, this also means that it has to switch from tariff code R, S, T or U to the normal tariff code A, B, C or H for genuine new cross-border commuters, for example.
If exactly 25% is granted, the applicability of the Framework Agreement must be checked, otherwise these persons must be insured in Italy. The limit is 25% work in the country of residence and more. If the conditions of the framework agreement are not met, it is recommended that teleworking is only permitted to the extent that the social security status can remain in Switzerland. This depends on the overall situation of the individual employee (other activities, other employers, activities other than teleworking in Italy, other usual activities in another country, etc.).
As soon as the nationality is neither Swiss nor EU, completely different provisions apply in the context of social security.
I address the topic of social security subordination in the following seminar:
Telework and social security subordination on 09.04.2024 from 10.00 – 12.00 am Swiss time https://www.zulaufgmbh.ch/en/kurse/telework-and-social-security-subordination/
