Background:
The companies did not have to make any changes to the taxation in payroll accounting for covid-related home office work of their cross-border workers from France. I refer to various published blogs.
In spring 2022, Switzerland lifted the restrictions based on the pandemic and the companies mostly lifted the restrictions on the normal workplace in Switzerland as well. The agreement remained in force until 30.6.2022 and many companies concluded that they were allowed to continue with the fiction of the place of work in Switzerland. Many posts on social media underlined this assumption. It was forgotten that the agreement was only valid with regard to pandemic-related restrictions and did not apply to situations that already existed before the outbreak of the pandemic, e.g. due to business trips, teleworking or home office work.
Various companies that implemented the agreement in accordance with its provisions therefore began to implement the normal rules for calculating withholding tax in the Swiss payroll before 30 June 2022.
Many cross-border commuters from France no longer wanted to return to work in Switzerland at 100%, which is why many additional questions started to arise.
Special agreement with France and the cantons BS, BL, BE, JU, NE, SO, VD, VS resp. double taxation agreement CH-FR Art. 17 para. 4
The major uncertainty was the application of the 45 non-return days for the cantons with the special accord. If these days are exceeded, an employer must switch from no withholding tax deduction (provided that the necessary certificates are available and the general provisions are met) to full withholding tax deduction. For this reason, various associations recommended that a company should not grant its cross-border commuters from France more than 1 day of home office per week.
Cantons with taxation according to the CH-FR double taxation agreement Art. 17 para. 1 (all, except the cantons according to the above-mentioned special accord)
The companies in Switzerland would have had to continue to apply the full withholding tax rate and exclude the working days worked abroad (details on the calculation are published in circular no. 45 of the FTA and in the addendum of the salary standard ELM 5.0 version 30.6.2022 published by Swissdec). With the elimination of these working days, there was a risk that France could have enforced its unilaterally enacted provisions to the extent that employers in Switzerland would have had to appoint a fiscal representative and pay withholding taxes to France for the working days worked in France for their employees. This, in turn, is not recommended from a Swiss perspective, because the company would be liable to criminal prosecution without authorisation.
Negotiations for a clear solution for both states were only started under pressure from various stakeholders. These negotiations for cross-border workers with telework have not yet been concluded. A holistic solution for cases with and without a special agreement is to be found by the end of October 2022.
Therefore, on 29 June 2022, the FTA published a further agreement that the pandemic related agreement would be continued until 31 October 2022. The wording was so unclear that various cantonal withholding tax offices expressed different opinions. One canton (without a special agreement) referred to the currently non-existent pandemic reason and confirmed in a written enquiry that working days worked abroad, including teleworking days without a pandemic reason, must be exempt from withholding tax in Switzerland. Another canton (also without a special agreement) confirmed that companies may only exempt foreign working days from withholding tax with written confirmation from the withholding tax authorities.
New agreement between Switzerland and France valid from 1.7.2022 to 31.10.2022, published on 20.7.2022 (in French only)
To what does this new agreement refer?
Reference is made to Article 17, paragraphs 1 and 4 of the DTT CH-F.
“Subject to Articles 18 to 21, salaries, wages and similar remuneration derived by a resident of a Contracting State from employment may be taxed only in that State unless the work is performed in the other Contracting State. If the work is performed there, the remuneration received therefore may be taxed in the other State.
Notwithstanding the foregoing provisions of this Article, but subject to Articles 18, 19 and 21, the provisions of the Convention on the Taxation of Income from Employment of Frontier Workers of 11 April 1983 , which form an integral part of the Convention, shall remain applicable.” (free translation from German)
Art. 18 deals with supervisory or administrative board remuneration and similar payments. Art. 19 deals with artists, such as stage, film, radio and television artists, musicians or sportsmen. Art. 20 and Art. 21 deal with remuneration including pensions of legal persons under public law etc.. The application of this new agreement must therefore be examined in detail depending on the company.
Effect on the special agreement with France and the cantons of BS, BL, BE, JU, NE, SO, VD, VS
The provision is freely translated from French as follows:
“The days on which frontier workers covered by the exemption provided for in the Agreement of 11 April 1983 on the taxation of the remuneration of frontier workers carry out their work at their place of residence from their State of residence shall not be taken into account for the purpose of counting the 45 days (in accordance with the exchange of letters of 21 and 24 February 2005 between the competent authorities in application of the said Agreement).”
Thus, it is now clear that during this transitional period from 1.7.2022 to 31.10.2022, employers only have to take into account the work-related non-return days which are not performed in the home office.
The phase not being covered after the lifting of the pandemic measures and 30.6.2022 remains unclear.
It is clear that the 45 days of non-return days are based on a calendar year and therefore a reduction must be made for the non-pandemic phase and only then must these newly calculated maximum days be set in relation to the effective non-return days.
It is further recommended to contact the responsible canton and ask for a written statement in order not to take any unnecessary risks when calculating the withholding taxes in 2022.
Effect on the cantons with taxation according to the CH-FR double taxation agreement Art. 17 para. 1 (all, except the cantons according to the above-mentioned special agreement).
The provision reads freely translated from Frenach as follows:
“This Agreement applies to individuals who are residents of a Contracting State, who habitually carry out their work in the other State and who, from the entry into force of this Agreement, receive income for work carried out from home from their State of residence, whether full-time or part-time, and provided that the other State effectively taxes such income.
If a taxpayer does not wish to avail himself of the Agreement, he shall notify his choice for taxation in his State of residence of the income attributable to the days worked there.
In any case, the taxpayer must provide for the tax administration a certificate from his employer stating the number of days worked at his place of residence.”
Employers should therefore ask their employees which option they prefer – the fiction of the place of work in Switzerland or the reduction of foreign working days – and have this confirmed in writing. It is essential that the employer organises the recording of home office days (also retrospectively). The withholding tax is then calculated analogously with or without foreign working days.
In an additional announcement, the FTA published the mutual agreement between Switzerland and Germany on 18.7.2022. This confirms that full-day home office days do not count as non-return days for genuine cross-border commuters. The non-return days may not exceed 60 days in relation to a whole calendar year. Otherwise, the person concerned becomes a non-genuine cross-border worker, which leads to different taxation.
“There is a common understanding that working days on which a cross-border commuter within the meaning of Article 15a, paragraph 2, sentence 1 DTT works all day at the place of residence in the State of residence are not considered working days on which the person does not return to the place of residence after the end of work due to the performance of his or her work. These working days are therefore not deemed to be non-return days within the meaning of Article 15a, paragraph 2, sentence 2 DTT.” (free translation from German)
I would like to refer to the seminar of 2.9.2022 in German “Risks of Mobile Working of Employees at Home and Abroad for Swiss Companies” flyer 2.9.2022
This seminar will not only address the challenges related to taxes, but also many other regulations that need to be taken into account.
