Table of content IntroductionI

INTRODUCTION

As a country, Switzerland is primarily an importer of foreign labour. But the relevant tax law is complex and can be difficult to navigate both for employers who post staff to our country and for employees planning to work here for a short period. In this article, our lawyers will take a look at tax liability for short-term and posted workers in Switzerland. We will also look at the taxation of cross-border workers and procedural considerations.

CROCE & Associés SA is one of only a few Swiss law firms to have specialised in immigration law for nearly fifteen years. We look after both family relocations, with or without gainful activity (lump-sum taxation, pensions, etc.) and residence permit applications for employees in Swiss, European and international businesses. Our lawyers file notifications for posted workers and handle applications for short- and long-term residence permits, 4-month or 120-day authorisations, settlement permits and even Swiss citizenship, all across Switzerland, working in French, Italian and German. Naturally, our services also cover other aspects of Swiss employment law (such as salary calculations and administrative procedures involving the foreign labour authorities), international tax law and social charges.

We will begin with some preliminary remarks:

1) It is important to make the distinction between posted workers and salaried employment in Switzerland. Posted workers are staff of an employer, whose business has its head office outside Switzerland, sent by this employer to Switzerland for a limited period of time to work on behalf of the employer and under its supervision as part of a contract for the provision of services signed between the employer and the recipient of the service in Switzerland, or to work for the employer’s subsidiary or a company within its group. In this last situation, it can be difficult to decide whether the person is a posted worker or a salaried employee in Switzerland. A posted worker remains under the direction of their employer abroad, and it is that employer who decides when the posting ends and makes any changes to working conditions. A posted worker has no employment contract with the Swiss company and is presumed to return to their home country at the end of the posting. Consequently, in contrast with a migrant worker in Switzerland, a posted worker is not integrated into the Swiss labour market.

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Except as regards taxation at source, the type of residence permit issued to the worker is a separate question from their tax status, which should be decided by analysing internal Swiss law and international law.

For posted workers there will generally either be no administrative formalities to complete with the immigration authorities, or the employer will be required to file a simple notification (90-day rule). In rare cases, they may be granted a work permit for 4 months or 120 days, and even more rarely they will be issued a permit L or a permit B (for long-term postings). Lastly, if the posted worker crosses the border out of Switzerland every day, instead of a permit B or a permit L they will be issued with an assurance of authorisation (the cross-border permit G only applies to workers who have signed employment contracts with Swiss companies).

For workers employed by Swiss companies, either a simple notification will be required (for EU/EFTA nationals contracted for up to 3 months) or a residence permit will be issued - either a permit L (for stays of less than one year) or a permit B (for longer stays).

Lastly, a permit G is issued to workers who live in a European country bordering Switzerland (France, Germany, Austria, Liechtenstein or Italy), who are employed by a Swiss employer and who return to their home abroad at least once a week (but generally every day).

In most cases, for a permit B or L to be issued (whether as a posted worker or not), the person is required to live in Switzerland. However, this does not necessarily mean they have their tax domicile in the country. For example, some workers are posted to Switzerland for more than 120 days or 4 months, but return home to their family every weekend.

A tax question with an international dimension (because the person lives and works in different countries) must always be approached as follows:

Firstly, consult Swiss internal tax rules to decide whether the worker has their tax domicile or residence in Switzerland.

If so, look at the dual tax liability rules laid down in any relevant double-taxation agreements signed by Switzerland.

Once tax domicile has been determined under the terms of the agreement, refer to the specific provisions to understand which country has the right to tax the worker.

7 rue des Alpes, 1201 Geneva • T +41 (0)22 906 85 00 • F +41 (0)22 906 85 01 info@croce-associes.ch • www.croce-associes.ch