Official statements
On this page you will find the official statements of the FTA and the Swiss Tax Conference (STC).
Top-up tax: application of Chapter 2.6 of the administrative guidance dated 18 December 2023
The administrative guidance of the Inclusive Framework on BEPS of the OECD1 and the G20 countries, published on 18 December 2023 (hereinafter referred to as “the administrative guidance of December 2023”)2, deals with hybrid arbitrage arrangements within the transitional CbCR safe harbour in Chapter 2.6. It provides that the document on safe harbours, published on 20 December 20223, is to be supplemented by paragraphs 74.25 to 74.31 of the administrative guidance of December 2023.
Paragraph 74.31 of the administrative guidance of December 2023 allows jurisdictions that, based on constitutional grounds or other superior law, are unable to apply paragraphs 74.25 to 74.30 of the administrative guidance of December 2023 to transactions entered into after 15 December 2022, to apply them only to transactions entered into after 18 December 2023.
It is therefore necessary to determine the date of application of these rules for the Swiss jurisdiction:
Chapter 2.6 concerning hybrid arbitrage arrangements within the transitional CbCR safe harbour of the administrative guidance dated 18 December 2023 applies to transactions entered into after 18 December 2023.
This communication on practice was discussed with the Swiss Tax Conference.
1 Organisation for Economic Co-operation and Development
2 The administrative guidance of December 2023 can be viewed free of charge at: https://www.oecd.org/en/topics/sub-issues/global-minimum-tax/global-anti-base-erosion-model-rules-pillar-two.html.
3 The document “Safe harbours and penalty relief” can be viewed free of charge at: https://www.oecd.org/en/topics/sub-issues/global-minimum-tax/global-anti-base-erosion-model-rules-pillar-two.html. See also Annex A of the consolidated commentary to the GloBE Model Rules.
Top-up tax: consideration of residual tax on distributions from qualifying participations from 1 January 2024
1. Background
The top-up tax (supplementary tax) is calculated based on the provisions of the Global Anti-Base Erosion Model Rules of the Inclusive Framework on BEPS of the OECD1 and the G20 countries (Global Anti-Base Erosion Model Rules, GloBE Rules2; see Art. 9 and Art. 11 of the Ordinance of 22 December 2023 on the Minimum Taxation of Large Corporate Groups [Minimum Taxation Ordinance, OMinT; SR 642.161]). In accordance with Article 2 paragraph 1 of the OMinT, the GloBE Rules apply by analogy to Swiss top-up tax. In particular, the GloBE Rules are to be interpreted in accordance with the associated Commentary3 and related regulations of the OECD and the G20 countries (see Art. 2 para. 3 of the OMinT).
When calculating the effective tax rate for the top-up tax, covered taxes are an important element (see Chapters 4 and 5 of the GloBE Rules). Covered taxes may also include the non-recoverable Swiss withholding tax (residual tax; see Art. 4.2. of the GloBE Rules).
In principle, covered taxes must be allocated to the constituent entity in which they are recorded (see Art. 4.1.1. of the GloBE Rules). However, Article 4.3. of the GloBE Rules provides for various provisions for the reallocation of covered taxes between different constituent entities.
Article 4.3.2. letter e of the GloBE Rules concerns the allocation or reallocation of taxes on distributions. Consequently, the covered taxes accrued in the financial accounts of a constituent entity’s direct constituent entity-owners, that are incurred on distributions from the constituent entity during the fiscal year, are allocated to the distributing constituent entity.
2. Exclusion of certain provisions of the GloBE Rules for Swiss top-up tax
In accordance with Article 2 paragraph 2 letter b of the OMinT, Article 4.3.2. letter e of the GloBE Rules in particular is not applicable to Swiss top-up tax.
The aim of this exclusion is to ensure that the covered taxes of a constituent entity-owner on distributions from qualifying participations that are allocable to the locally resident distributing constituent entity are not taken into account when calculating Swiss top-up tax, in line with the consolidated commentary on the term ‘Qualified Domestic Minimum Top-up Tax’ (‘QDMTT’).
The purpose of this special rule for the qualified domestic minimum top-up tax is to give a jurisdiction the primary right to tax locally resident constituent entities. The rule also aims to avoid complex international allocation rules for foreign taxes in the case of the qualified domestic minimum top-up tax.
However, the consolidated commentary stipulates4 that in the case of withholding taxes imposed by the country of the distributing constituent entity on the distributions, these may still be taken into account by the locally resident distributing constituent entity for the qualified domestic minimum top-up tax.
3. Consideration of the residual tax on distributions from Swiss constituent entities for Swiss top-up tax (outbound issues)
It follows from the explanations under section 2 above that the residual tax on distributions of a Swiss constituent entity must be recognised as covered tax for the calculation of Swiss top-up tax at the level of the distributing Swiss constituent entity.
4. Consideration of the residual tax on distributions from foreign constituent entities for Swiss top-up tax (inbound issues)
Under Article 3.2.1. letter b of the GloBE Rules, dividends and other distributions are to be excluded from GloBE income or loss if they qualify as so-called excluded dividends. Article 4.1.3. letter a of the GloBE Rules also excludes the tax expense with respect to income excluded under Chapter 3 from the adjusted covered taxes of the receiving constituent entity. The non-recoverable foreign withholding taxes on such distributions are therefore not to be taken into account when calculating Swiss top-up tax; these are to be allocated to the distributing foreign constituent entity.This communication on practice was discussed with the Swiss Tax Conference.
1 Organisation for Economic Co-operation and Development
2 The GloBE Model Rules can be viewed free of charge at: https://www.oecd.org/en/topics/sub-issues/global-minimum-tax/global-anti-base-erosion-model-rules-pillar-two.html.
3 The Commentary to the GloBE Model Rules (hereinafter referred to as the consolidated commentary) can be viewed free of charge at: https://www.oecd.org/en/topics/sub-issues/global-minimum-tax/global-anti-base-erosion-model-rules-pillar-two.html.
4 See consolidated commentary on Article 10.1 of the GloBE Rules, Qualified Domestic Minimum Top-up Tax, paragraph 118.30.
1. Background
The supplementary tax (top-up tax) is calculated based on the provisions of the OECD1/G202 Global Anti-Base Erosion Rules (hereinafter GloBE Rules) (see Art. 9 and Art. 11 of the Ordinance of 22 December 2023 on the Minimum Taxation of Large Corporate Groups [Minimum Taxation Ordinance, OMinT3]). In accordance with Article 2 paragraph 1 of the OMinT, the GloBE Rules apply by analogy to Swiss supplementary tax. In particular, the GloBE Rules are to be interpreted in accordance with the associated Commentary4 and related regulations of the OECD/G20 countries (see Art. 2 para. 3 of the OMinT).
When calculating the effective tax rate for the supplementary tax, the covered taxes are an important element (see Chapters 4 and 5 of the GloBE Rules). The covered taxes may also include the non-recoverable Swiss withholding tax (residual tax) (see Art. 4.2. of the GloBE Rules).
In principle, the covered taxes must be allocated to the constituent entity in which they are recorded (see Art. 4.1.1 of the GloBE Rules). However, Article 4.3 of the GloBE Rules provides for various provisions for the reallocation of covered taxes between different constituent entities.
Article 4.3.2 letter e of the GloBE Rules concerns the attribution or redistribution of taxes on distributions. This means that the covered taxes accrued in the financial statements of the group's direct participants in a constituent entity, that are incurred on distributions received in the financial year, are allocated to the distributing constituent entity.
2. Exclusion of certain provisions of the GloBE Rules for Swiss supplementary tax
In accordance with Article 2 paragraph 2 letter b of the OMinT, Article 4.3.2 letter e of the GloBE Rules in particular is not applicable to Swiss supplementary tax.
According to the Consolidated Commentary to the GloBE Model Rules, this exclusion is required for the "Qualified Domestic Minimum Top-up Tax" (QDMTT).5
Without the exclusion of this provision, these taxes incurred on distributions would be recognised as covered taxes for the distributing corporation in accordance with the allocation rule of Article 4.3.2 letter e of the GloBE Rules. With the exclusion of letter e, these taxes cannot be taken into account in the calculation of Swiss supplementary tax, as specified in the Consolidated Commentary to the GloBE Model Rules.
The purpose of this special rule for the recognised domestic minimum top-up tax is to give a jurisdiction the primary right to tax locally resident constituent entities. Furthermore, the exclusion is intended to avoid complicated international allocation rules for foreign taxes in the case of the recognised domestic minimum top-up tax.
However, the Consolidated Commentary to the GloBE Model Rules further stipulates6 that withholding taxes levied on the aforementioned distributions in the jurisdiction of the distributing constituent entity are expressly not covered by this exclusion of Article 4.3.2 letter e of the GloBE Rules.
3. Consideration of the residual tax on distributions from Swiss constituent entities for Swiss supplementary tax from 1 January 2024 (outbound case)
It follows from the explanations under section 2 that the residual tax on distributions of a Swiss constituent entity must be recognised as the covered tax for the calculation of Swiss supplementary tax for the distributing Swiss constituent entity.
4. Consideration of the residual tax on distributions from foreign constituent entities for Swiss supplementary tax from January (inbound case)
Under Article 3.2.1 letter b of the GloBE Rules, dividends and other distributions are to be excluded from GloBE income or loss if they qualify as so-called excluded dividends. Article 4.1.3 letter a of the GloBE Rules also excludes the tax expense with respect to income excluded under Chapter 3 from the adjusted covered taxes of the receiving constituent entity. The non-recoverable foreign withholding taxes on such distributions are therefore not to be recognised when calculating Swiss supplementary tax; these are to be credited to the distributing foreign constituent entity.
This FTA communication was discussed with the Swiss Tax Conference.
1 Organisation for Economic Co-operation and Development
3 SR 642.161
4 Tax Challenges Arising from the Digitalisation of the Economy – Consolidated Commentary to the Global Anti-Base Erosion Model Rules (2023): Inclusive Framework on BEPS | en | OECD (hereinafter consolidated commentary)
5 See Consolidated Commentary to Article 10.1, Qualified Domestic Minimum Top-up Tax, paragraph 118.30.
6 See Consolidated Commentary on Article 10.1, Qualified Domestic Minimum Top-up Tax, paragraph 118.30.
1. Background
A multinational enterprise (MNE) group subject to minimum taxation consists of constituent entities (see in particular Art. 1.1.1 and Art. 1.3 of the Global Anti-Base Erosion Model Rules of the Inclusive Framework on BEPS of the OECD1 and the G20 countries [Global Anti-Base Erosion Model Rules, GloBE Rules]2). These constituent entities are subject to the GloBE Rules and the Ordinance of 22 December 2023 on the Minimum Taxation of Large Corporate Groups (Minimum Taxation Ordinance, OMinT; SR 642.161).
The term constituent entity is defined in the GloBE Rules (see Art. 2 para. 1 and Art. 3 para. 1 of the OMinT).
According to Article 1.3.1 of the GloBE Rules, a constituent entity is any entity that is included in a group (let. a) and any permanent establishment of a main entity that is itself an entity that is included in a group (let. b). According to Article 1.3.2 of the GloBE Rules, a permanent establishment that is a constituent entity under Article 1.3.1 letter b of the GloBE Rules shall be treated as separate from the main entity and any other permanent establishment of that main entity.
The term permanent establishment is defined in Article 10.1 of the GloBE Rules. It follows in particular from this definition that only permanent establishments of foreign entities are deemed to be constituent entities. Permanent establishments of domestic entities of the MNE group concerned, by contrast, are not deemed to be constituent entities, but belong to the domestic main entity for GloBE purposes.
Constituent entities of an MNE group may be liable for top-up tax and subject to various procedural obligations (see in particular Chapters 2 and 8 of the GloBE Rules and Art. 5 and Art. 19 et seq. of the OMinT). Furthermore, under Article 6 of the OMinT, all constituent entities of an enterprise group that belong to Switzerland for tax purposes are jointly and severally liable for the amount of the top-up tax attributed to them under Article 12 of the OMinT.
2. Legal classification of permanent establishments according to Swiss law
In the present context, a permanent establishment is a purely fiscal term. Permanent establishments – regardless of whether they are registered with the commercial register as a branch or not – have no legal personality. They have neither legal capacity nor the capacity to act. In addition, they lack the capacity to be a party to legal proceedings and to take legal action. Finally, permanent establishments cannot be subject to debt enforcement proceedings. For these aspects, permanent establishments are part of the main entity.
In the case of direct federal tax, it is not the permanent establishment itself that is subject to tax; rather, if a permanent establishment exists, there is an economic affiliation in Switzerland of the individual or legal entity that is not personally affiliated in Switzerland (see Art. 4 para. 1 let. b and Art. 51 para. 1 let. b of the Federal Act of 14 December 1990 on Direct Federal Taxation [DFTA]; SR 642.11).
3. Treatment of constituent entities that are permanent establishments for top-up tax purposes
As explained in section 1, international permanent establishments are deemed to be constituent entities under the GloBE Rules. Furthermore, the GloBE Rules and the OMinT regulate the tax liability and procedural obligations in the same way for all constituent entities – regardless of whether a constituent entity is a permanent establishment or not.
However, with regard to Swiss law, the explanations in section 2 above must be observed for permanent establishments. If a permanent establishment qualifies as a constituent entity under the provisions of the OMinT and the GloBE Rules, it therefore follows from the explanations in section 2 above that the tax liability and procedural obligations under the OMinT and the GloBE Rules do not apply to the permanent establishment itself, but rather to the foreign main entity.
In the same way, liability or joint liability under Article 6 of the OMinT applies to the foreign main entity, whereby under Article 50 paragraph 1 of the Federal Act of 11 April 1889 on Debt Enforcement and Bankruptcy (DEBA; SR 281.1), debtors resident abroad who have a permanent business establishment in Switzerland may be held liable for the liabilities incurred for the account of the latter, at the registered office of the latter.
The above information applies to tax liability, procedural obligations and liability. However, this does not change the basic concept of the GloBE Rules. In particular, the principle of jurisdictional blending, the allocation rules for income and tax, and the rules on the location of entities and permanent establishments continue to apply unchanged.
1 Organisation for Economic Co-operation and Development
2 The GloBE Model Rules can be viewed free of charge at: https://www.oecd.org/en/topics/sub-issues/global-minimum-tax/global-anti-base-erosion-model-rules-pillar-two.html
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