Ordinance on the implementation of consultation agreements between the Federal Republic of Germany and the Swiss Confederation (German-Swiss Consultation Agreement-KonsVerCHEV)

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KonsVerCHEV

Date of completion: 20.12.2010

Full quote:

" German-Swiss Consultation Agreement Ordinance of 20 December 2010 (BGBl. 2187), as defined by Article 13 of the Law of 18 July 2014 (BGBl. 1042).

Status:

Amended by Art. 13 G v. 18.7.2014 I 1042

For more details, please refer to the menu under Notes

Footnote

(+ + + Text proof: 23.12.2010 + + +) 
(+ + + For application cf.  § 25 + + +) 

  

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Input formula

Pursuant to Article 2 (2), first sentence, of the Tax Code, which is defined by Article 9 (2) (b) of the Law of 8 December 2010 (BGBl. 1768), and Article 97 (1) (9), first sentence, of the Introductory Act to the Tax Code, which is defined by Article 16 (1) of the Law of 8 December 2010 (BGBl. I p. 1768), the Federal Ministry of Finance is responsible for: Unofficial table of contents

Content Summary

Section 1General

§ 1	Agreements
§ 2	Scope

Section 2Donations

§ 3	Legs of business operations

Section 3Cross-Border Taxation
(Article 15a of the Agreement)

§ 4	Dismissal
§ 5	Certificate of resignation
§ 6	Place of work
§ 7	Small working conditions
§ 8	Non-return days
§ 9	Reduction of the 60-day limit
§ 10	Certificate of non-return days
§ 11	Assessment base and period
§ 12	Country of State of Germany
§ 13	Principles of tax calculation
§ 14	Wage tax determined according to official specifications is lower than 4.5 percent
§ 15	Obligation to change the withholding tax
§ 16	Proof of gross remuneration
§ 17	Various special cases
§ 18	Emigrants to Switzerland (Article 4 (4) of the Agreement)

Section 4Leisure employees,
Third country income

§ 19	Taxation of senior employees
§ 20	Employees with income from third countries

Section 5Other Use Cases

Section 21	Maintenance services to divorced or permanently separated spouses or to life partners of a raised life partnership or permanently separated life partners
Section 22	Company divestment pensions
Section 23	Successor companies to the Regieholdings referred to in Article 19 (3) of the Agreement
§ 24	Employees-Findings

Section 6Final provisions

Section 25	Application rules
Section 26	entry into force

Section 1
General

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§ 1 Agreement

The Agreement between the Federal Republic of Germany and the Swiss Confederation on the prevention of double taxation in the area of taxes on income and assets of 11 August shall be considered as an agreement within the meaning of this Regulation. 1971 (BGBl. 1972 II p. 1021, 1022), as last amended by the Protocol of 12 March 2002 (BGBl. (2) The Agreement between the Federal Republic of Germany and the Swiss Confederation on the prevention of the Double taxation in the field of inheritance and inheritance tax of 30 November 1978 (BGBl. 1980 II p. 594, 595), as amended. Unofficial table of contents

§ 2 Scope

The uniform application and interpretation of the Agreement with regard to the implementation of the relevant consultation agreements within the meaning of the second sentence of Article 2 (2) of the Tax Code, which are adopted by the competent authorities within the meaning of Article 3 (1) (i) of the Agreement shall be governed by this Regulation.

Section 2
Donations

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§ 3 Donations of business enterprises

The provisions of the inheritance tax agreement applicable to inheritance cases (Section 1 (2)) shall also apply mutas to the donations of business enterprises.

Section 3
Frontier taxation (Article 15a of the Convention)

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§ 4 Ansatiousness

Where a number of residences or a number of places of habitual residence are given in a State of residence, the status of frontier workers within the meaning of Article 15a of the Agreement shall be preserved, regardless of the place of residence or place of the habitual residence. Stay the regular return. Unofficial table of contents

§ 5 Certificate of residence

(1) The application for a certificate of residence must be signed by the frontier worker in person. (2) The certificate of residence shall apply in each case for one calendar year, in the case of employment during the year up to the end of the year. respective calendar year. The certificate for the following year shall be issued to the frontier worker without a request by the competent tax authority. In the case of employers ' change, a new certificate must be requested. The State of residence may refuse to issue a certificate of residence only if the person does not fulfil the conditions laid down in Article 15a of the Convention. Unofficial table of contents

§ 6 Work place

The place of work is regularly the place where the employee is incorporated into the operation of his employer. If the employee is not only practising in that place, as is the case in particular for professional drivers and field workers, the days of the external activity as a business travel within the framework of the investigation of the Non-return days. If, according to his employment contract, the employee is incorporated into more than one operation of his employer, the place of work shall be the place where he or she has to carry out his work predominantly. Unofficial table of contents

Section 7 Minor employment relationships

A regular return within the meaning of Article 15a (2) of the Agreement shall also apply where the worker is at least one day per week or at least five days per week on the basis of a contract of employment or of several employment contracts. Month from his place of residence to his place of work and return. If the above conditions are not met in the case of minor working conditions, a regular return will not be accepted. Unofficial table of contents

§ 8 Non-return days

(1) Non-return days shall only be considered working days recorded in the personal employment contract of the worker. Saturdays, Sundays and holidays can only be counted in exceptional cases on the relevant working days, for example, if the employer expressly arranges the work on these days and, in general, as a rule, either amalgam or leisure time equallot. additional payment for this. If the employer is responsible for the travel expenses, all weekend and public holidays are considered non-return days in the case of multi-day business trips. (2) A non-return on the basis of the exercise of work shall be due, in particular, if the return to the place of residence is is not possible or is not reasonable for professional reasons. A non-return day shall not be accepted because the working time of the individual in his place of work extends either as a result of the initial periods or through the length of the working time over more than one calendar day. Shiftworkers, staff with night-time services and hospital staff with on-call duty are not excluded from the cross-border commuters due to their specific working hours. (3) Working days should be regarded as periods of time for which The reason for the employment relationship is an obligation of the worker to be present at the place of work. Short-term breaks of working time of less than four hours do not end the working day. In the event of an interruption of work of four to six hours, a return to the place of residence shall be presumed if the time required for the journey from the workplace to the place of residence and back with the transport means used in the rule no longer than 20 per cent of the period of interruption of work. (4) Absences due to sickness and accident are not considered to be days of non-return. The days of non-return are determined by the number of overnight stays or the professional non-return in the event of an interruption of work of at least four hours. (5) Overnight business trips in the Contracting State of the Places of work and in the State of residence do not count on non-return days. One-day business trips to third countries always count on non-return days. Unofficial table of contents

§ 9 Reduction of the 60-day limit

(1) If an employer change takes place within a calendar year in the host country, the 60-day limit is reduced in relation to the respective employment relationship. (2) In the case of part-time workers who are employed only on a daily basis in the other State , the number of 60 bad days shall be reduced by proportional reduction. Reference quantities are the working days agreed in the respective employment contract with the working days normally used for full-time employment. In the case of a 5-day week, from 250 business days, a 6-day week of 300 working days is to be assumed. The calculation of the 60 days is also to be carried out for employees who are employed by several employers in the other Contracting State. The conditions for frontier workers ' property must be assessed separately for each employment relationship. Non-return days are to be attributed to the respective employment relationship according to their predominant disposition. A multiple consideration does not take place. Unofficial table of contents

§ 10 Certificate of non-return days

(1) If, at the end of the year or at the end of the employment relationship during the calendar year, the employer finds that the frontier worker property is not available on the basis of the corresponding non-return days, he shall have the non-return days after official notice. to certify the pre-printed form. The form shall be forwarded in each case to the tax authority responsible for the retention of the tax, which shall, after verification, give the certificate to the employer for the purpose of forwarding it to the frontier worker returns. A review of the certified non-return days shall be permitted. (2) It can be foreseen for the employer that the frontier worker should be employed for all-year employment over 60 days per calendar year, in the case of temporary employment during the calendar year after corresponding reduction, shall not return to its place of residence for professional reasons, the State of activity shall be entitled on a provisional basis to collect withholding taxes. The employer has to give this to the frontier worker informally, with the indication that the detailed list of days of non-return after the end of the calendar year or, if the employment relationship is terminated earlier, to the end of the The employment relationship shall be certified to the tax authority on a pre-written form. This circumstance should be taken into account in the State of the Union by postponing the taxation or adjustment of the income tax advance payments. Unofficial table of contents

§ 11 Base and period of assessment

In the event of a certificate of residence or renewal, the deductibility tax may not exceed 4.5% of the gross amount of the remuneration. For the calculation, the payroll period is the determining factor. The tax base (gross amount of the remuneration) is determined according to the respective national tax law. The qualification by the host country shall bind the State for the purposes of the tax calculation. In so far as the frontier worker property is present, the withholding tax deduction extends to all remuneration, irrespective of where the work is carried out. Unofficial table of contents

§ 12 State of the Republic of Germany

(1) However, the offsetting tax on the assessment shall be effected only if a separate tax certificate or a tax card is presented on the payroll over the withheld tax on the deducted tax. This proof shall be issued by the employer at the request of the employee. Without the certificate after the first sentence, a deduction tax can not be taken into account even in the event of an estimate. (2) The employer shall hold a withholding tax of more than 4.5% of the gross remuneration in the case of a frontier worker, only one shall be provided with a Offsetting of the deducted tax of 4.5 percent of gross remuneration. The first sentence of paragraph 1 shall apply accordingly. It is not possible to refund too much of the Swiss tax withheld in Germany. Unofficial table of contents

§ 13 Principles of tax calculation

(1) For Swiss workers who fulfil the cross-border status of workers within the meaning of Article 15a (2) of the Agreement, a separate wage tax deduction scheme deviating from Article 39d of the Income Tax Act shall apply. The divergent payroll tax deductibles apply even if the Swiss frontier worker is, exceptionally, unrestricted or extended to an unlimited amount of income tax, because there is double compliance and Article 4 (3) of the agreement does not apply. , or under the other conditions of § 1 (3) of the Income Tax Act, the working wage is obtained from a German public cash register. (2) For the concept of wage, § 2 of the wage tax implementing regulation applies. Personal deductions, such as advertising costs, special expenses and exceptional charges, for which a free amount is generally called into question (§ § 39a, 39d (2) of the Income Tax Act), the tax base for the reduced (3) Article 15a (1), third sentence, also applies to the cases of flat-rate payroll tax. The tax rate of 15 percent or 25 percent, which is applicable in accordance with the Income Tax Act, will be reduced accordingly. This applies regardless of whether a flat-rate payroll tax, as in the case of employment or part-time employees for the entire working wage or as in the case of future-proof benefits in addition to the rest of the working wage, comes into question. (4) If the employer during the The full tax is to be withheld for more than 60 days on the basis of his/her work exercise, and shall not return to the place of residence for more than 60 days. This is also true if the employer recognises that the worker is likely to exceed the 60 days. Unofficial table of contents

§ 14 wage tax determined according to official specifications is lower than 4.5 percent

(1) The tax rate of 4.5 per cent is insignificant if the Swiss frontier worker has submitted a certificate of validity or an extension and a comparison between the payroll tax and the payroll tax determined according to the official specifications reduced deductions tax shows that the tabular payroll tax is less than 4.5 percent of the total taxable wage of the respective payroll period. The German employer has to carry out a comparison calculation in the case of low wages. (2) A comparison calculation is not necessary if the employer has to carry out a tax withdrawal according to the tax class VI. Unofficial table of contents

Section 15 obligation to amend the tax deducted tax

The obligation to collect payroll taxes is also maintained after the end of the calendar year. By way of derogation from § 41c (3) of the Income Tax Act, Swiss frontier workers shall be subject to a change in the wage tax deduction for the past year beyond the date of the invitation to tender of the wage tax certificate, in each case. to carry out the next wage payment. If, in the reverse case, it is subsequently found that the conditions of the cross-border worker's property are met, the employer is only entitled to correct the wage tax which is too much retained until the special wage tax certificate is issued. After that date, the Swiss frontier worker may only be entitled to a wage tax withheld at the respective tax office in accordance with the provisions of the tax regulations (Article 37 (2) of the German Tax Code). Tax Code). Unofficial table of contents

Section 16 Proof of gross remuneration

(1) For a German frontier worker, the salary card (gross amount of remuneration) must be paid according to the official form of the Swiss tax administration, whereby expense allowances are to be listed separately by the employer. (2) For a At the end of the calendar year at the latest, the German employer shall, at the end of the calendar year at the request of the frontier worker, grant the German employer a special wage tax certificate in accordance with the official form. By way of derogation from § 41b of the Income Tax Act, a wage tax certificate is also to be issued for the flat-rate taxable wage; the flat-rate taxed wage can either be either separately or in a sum with the rest of the work. Labour wages are attested. It is also permissible to certify the flat-rate taxed wage in an attached declaration; the same shall apply to the identification of the payroll tax, which is attributable to this working wage. In addition, the employer has to certify tax-free dismissal compensation in accordance with § 3 number 9 of the Income Tax Act as well as tax-free surcharges for Sunday, public holiday or night work according to § 3b of the Income Tax Act. The entries shall be made in the official form in a free field and shall be marked as such. Unofficial table of contents

Section 17 Miscellaneous special cases

(1) Article 15a of the Agreement shall not apply in respect of workers covered by Article 15 (3) of the Agreement on board seagoing vessels or aircraft in international transport. (2) The tax withdrawal for artists, musicians, sportsmen and women, and Artistes within the meaning of Article 17 of the Agreement are not to be carried out in accordance with § 39d of the Income Tax Law, but according to § 50a of the Income Tax Act. It is limited to 4.5 per cent of gross remuneration for the above-mentioned group of persons. § 50d of the Income Tax Act remains unaffected. (3) For pensions of cross-border commuators from public funds, the tax deductibility referred to in Article 15a (1) shall be limited to 4.5% if a certificate of residence is present. The certificate of residence provided before the pension is issued shall continue to apply without any time limit, unless there is a change of housing. Unofficial table of contents

Section 18 Abemigrants to Switzerland (Article 4 (4) of the Agreement)

(1) A partial exemption from tax deductions under Section 39b (6) of the Income Tax Act for wages is not eligible for emigrate as long as Article 4 (4) of the Agreement applies. (2) The rules laid down in Article 4 Paragraph 4 of the Agreement shall not apply if the withdrawal takes place in Switzerland on account of marriage to a person of Swiss nationality. (3) For the calculation of Swiss taxes in the wage tax deduction procedure: Application of § 39b (6) of the Income Tax Act the employer pays due to reason a certificate issued by the tax office of the tax office for a certain amount as a Swiss tax on a provisional basis to the 4.5% of the gross amount of the remuneration of German wage tax. The cross-border commuter has to apply for the certificate of receipt at the tax office. The application shall be accompanied by his last Swiss tax or advance payment notification. After the end of the calendar year, an apportionment shall be carried out for the final settlement of the Swiss tax at the request of the cross-border commuter. The application for the application of the assessment shall be submitted at the same time as the application for the issuing of the credit certificate.

Section 4
Senior Employees, Third State Income

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Section 19 Taxation of senior employees

(1) In accordance with Article 7 (7) of the Agreement, the right of taxation pursuant to Article 7 (7) of the Agreement shall be governed by a shareholder of a private company. Article 15a of the Agreement shall apply in respect of the remuneration of activities under the national tax law applicable to the profit of the partnership. (2) The directors referred to in Article 15 (4) of the Agreement shall be subject to: Deputy Directors or Vice-Directors and Directors-General. Article 15 (4) of the Agreement shall apply only to persons whose function or prokura covered by the scope of the provision is registered in the Commercial Register. (3) For the income of senior employees of limited liability companies who do not have In accordance with Article 15 (4) of the Agreement, the State of the employer (the capital company) shall also have a right of taxation to the extent that the income is based on activities carried out in the State of the Agreement. Failure of senior staff and non-EU countries to be eliminated. The right of taxation of the State of the staff of the Chief Executive shall remain unaffected. Unofficial table of contents

Section 20 Employees with income from third countries

Labour income of a worker who is resident in the Federal Republic of Germany and is employed by a Swiss employer can only be taxed in Switzerland in accordance with Article 15 (1) of the Agreement, when the work there is is actually exercised. The place of work is to be assumed where the worker is personally (physically) for the execution of his activity.

Section 5
Other Use Cases

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§ 21 Maintenance of maintenance services to divorced or permanently separated spouses or to life partners of a raised life partnership or permanently separated life partner

(1) In accordance with Article 21 of the Agreement, maintenance payments may be made to a divorced or permanently separated spouses who come from a Contracting State and are paid to a person established in the other Contracting State, only in the other State shall be taxed. In accordance with the provisions of the first sentence, the following shall apply to maintenance benefits to life partners of a life partnership or permanently separated life partners. (2) For such maintenance payments which a natural person established in Germany will bring about in the case of a payer, in the determination of his taxable income, the same tax deductions which he would receive if the recipient were established in Germany. The precondition is that the recipient in Switzerland is subject to the ordinary taxation with these payments and this is demonstrated by a certificate issued by the competent cantonal tax authority. Unofficial table of contents

Section 22 Operating divestments

In the case of pensions paid on the basis of the sale of a holding (in-company disposal pensions), the operating state shall have the right of taxation in respect of the capital gains. If, in this case, the recipient of the pension selects the taxable person as a retrospective operating income, the tax law shall be entitled to the tax law for as long as the pension payments exceed the pension value. The right of taxation shall be applied to the State of residence of the pensioner as soon as the pension payments exceed the benefit of the divestment. Unofficial table of contents

Section 23 pursuant to Article 19 (3) of the Agreement of the Regieholdings

(1) Article 19 (3) of the Agreement shall also apply to allowances paid to officials who have so far been employed by Deutsche Post or Deutsche Bundesbahn and in the case of a privatised successor company, Deutsche Post AG, Deutsche Telekom AG or Deutsche Bahn AG, while retaining their official status. (2) Article 19 (3) of the Agreement shall also apply to remuneration to persons who are members of Swisscom Ltd, the Swiss Federal Railways or the Swiss Federal Railways. Swiss Post PTT is employed. Unofficial table of contents

Section 24 Workers ' severance

(1) In accordance with Article 18 of the Agreement, the right of taxation shall be accorded to the State of residence in accordance with the provisions of Article 18 of the Agreement. On the other hand, the (former) State of activity has the right to tax, provided that the severance payment is a wage or salary repayment or a Tantiem from the former employment relationship or the severance pay is generally for the early departure from the service is granted. In the event that the employee was also active in the period prior to leaving the service in part in the State in which he is established, the severance payment shall be divided on a pro rata basis in accordance with the tax allocation of the remuneration. (2) the severance payments on grounds of the termination of the employment relationship which a person residing in a Contracting State receives after withdrawal from the host State from the former employer established in the other Contracting State, not in the former State of activity, these severance payments may be made in the State of residence of the Person is taxed.

Section 6
Final provisions

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Section 25 Application

This Regulation shall apply for the first time to the content of taxation issues since 1 January 2010. Unofficial table of contents

Section 26 Entry into force

This Regulation shall enter into force on the day following the date of delivery. Unofficial table of contents

Final formula

The Federal Council has agreed.