Regulation On The Implementation Of Consultation Arrangements Between The Federal Republic Of Germany And The Swiss Confederation

Original Language Title: Verordnung zur Umsetzung von Konsultationsvereinbarungen zwischen der Bundesrepublik Deutschland und der Schweizerischen Eidgenossenschaft

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Regulation on the implementation of consultation arrangements between the Federal Republic of Germany and the Swiss Confederation (German-Swiss consultation agreement regulation - KonsVerCHEV) KonsVerCHEV Ausfertigung date: 20.12.2010 full quotation: "German-Swiss consultation agreement regulation of December 20, 2010 (BGBl. I S. 2187), by article 13 of the law of 18 July 2014 (BGBl. I S. 1042) has been changed" stand: amended by art. 13 G v. 18.7.2014 I 1042 for more information on the stand number you see in the menu see remarks footnote (+++ text detection from) : 23.12.2010 +++) (+++ application cf. Article 25 +++) input formula on the basis of § 2 paragraph 2 sentence 1 of the tax code, by article 9 number 2 point (b) of the Act of December 8, 2010 (BGBl. I S. 1768) is been attached and referred to in article 97 § 1 paragraph 9, sentence 1 of the introductory act to the tax code, by article 16 number 1 of the law of December 8, 2010 (BGBl. I S. 1768) is been attached , directed the Federal Ministry of Finance: table of contents section 1 General information section 1 agreement article 2 scope section 2 donations section 3 donations of operations section 3 cross-border taxation (article 15a of the agreement) § 4 residence § 5 residence certificate § 6 workplace § 7 minor employment relationships article 8 does not return days § 9 cut the 60-day limit article 10 certificate over the non-return days section 11 basis and period § 12 State of residence Germany § 13 principles of the tax calculation section 14 according to official determined wage tax is evidence of gross remuneration lower than 4.5 percent § 15 obligation to change the withholding tax § 16 § 17 different special cases § 18 emigrants in the Switzerland (article 4 paragraph 4 of the agreement) section 4 executives, third-party revenue section 19 taxation officer article 20 workers with income from third countries section 5 other use cases article 21 maintenance to divorced or permanent living spouse or life partner of a repealed civil partnership or permanently separated living life partner article 22 operational disposal pensions article 23 separated successor companies of enterprises referred to in article 19 paragraph 3 of section 24 the agreement workers compensation section 6 final provisions § 25 application control section 26 entry into force section 1 General section 1 Agreement (1) agreement in the sense of this Regulation shall apply to the agreement between the Federal Republic of Germany and the Swiss Confederation for the avoidance of double taxation in the field of taxes on income and on capital by August 11, 1971 (BGBl. 1972 II p. 1021, 1022), most recently by the Protocol of 12 March 2002 (BGBl. 2003 II pp. 67, 68) has been modified , in the applicable version.
(2) the agreement between the Federal Republic of Germany and the Swiss Confederation for the avoidance of double taxation in the field of estate and inheritance taxes of 30 November 1978 is considered inheritance tax agreement in the sense of this Regulation (BGBl. 1980 II pp. 594, 595) in the currently valid version.

Section 2 scope the uniform application and interpretation of the agreement relating to the implementation of appropriate consultation arrangements in the sense of § 2 paragraph 2 sentence 2 of the tax code, which by the competent authorities in the sense of article 3 paragraph 1, letter i of the agreement have been made, is addressed under this regulation.
Section 2 gifts article 3 donations of operations that are rules of inheritance tax agreement (article 1 paragraph 2) inheritance cases also for donations from business establishments according to apply.
Section 3 taxation of frontier workers (article 15a of the agreement) article 4 residence several residences are in a State of residence or given to several places of habitual residence, the property of frontier workers in the sense of article 15 of the agreement remains preserved, regardless of the regular return is the domicile or place of habitual residence.

§ To sign 5 residence certificate (1) which is the application for a certificate of residence of the frontier worker personally.
(2) the residence certificate is valid for one calendar year, with employment during the year until the end of the relevant calendar year. The certificate for each subsequent year is given the frontier without a request by the competent tax authority. Change of employer is a new certificate request. The State of residence can only refuse to grant the certificate of residence, if the person does not meet the conditions of laid down in article 15 of the agreement.

§ 6 place of work place of work regularly is the place where the workers in the operation of his or her employer is incorporated. The days of foreign business as business travel in the framework of the investigation of return days are the workers not only in this place performs his duties, as is the case in particular with professional drivers and sales representatives, to pay tribute. The employee is incorporated, according to his employment contract in more than one enterprise of his employer workplace is the place where his work mainly to exercise he.

§ 7 minor employment even exists a regular return in the sense of article 15 paragraph 2 of the agreement, when workers on the basis of an employment contract or several contracts to his place of work and back on at least one day per week, or at least on five days per month from his home. Those conditions with minor work conditions are not met, a regular return will not be accepted.

Section 8 does not return days (1) come not return days only are work days into account entered in the personal employment contract of the employee. Saturdays, Sundays, and holidays can count only in exceptional cases to the relevant working days, for example, if the employer expressly arranges the work these days and this line with usually either time off in lieu or additional payment for granted. The employer bear the travel costs, all weekend and holidays than not return days be viewed on several business trips.
(2) a non-return due to the exercise of the work is particularly if the return to the place of residence for professional reasons is not possible or cannot reasonably be. A day of non-return is not to accept, because the working hours of the individual at his place of work either due to the starting times or by the duration of the work period extending over more than one calendar day. Shift workers, personnel with night services and hospital staff with on-call are excluded from the cross-border scheme not already on the basis of their specific working hours.
(3) exercise of work are times to look at, for which on the basis of the employment relationship is an obligation of the employee to be present at the workplace. Short-term work interruptions of less than four hours does not finish the work day. When a work stoppage by four to six hours, a return to the residence is reasonable, if the required for the distance from the work site to the abode time and back with the means of transport used in the rule amounts to no more than 20 percent of the time of the work stoppage.
(4) sickness and accident-related absences are not considered non-return days. The days of no return are determined by the number of professionally-related nights or not professionally-related return when work is interrupted by at least four hours.
(5) one-day business trips in the Contracting State of the place of work and in the State of residence does not include the non-return days. One-day business trips in third countries are always the non-return days.

§ 9 cut the 60-day limit (1) a change of employer in a calendar year in the State of the activity takes place, is the reduction of the 60-day limit based on the individual employment relationship.
(2) in the case of part-time workers, who are employed only by the day in the other State, the number of 60 innocuous days through proportional reduction shall be reduced. Reference values are agreed in the respective employment contract working days to the full time employment operating normal working days. In a 5-day week is 250 customary working days, to go out with a 6-day week 300 customary working days. Holidays are for two operands for simplification reasons not to pull off.
(3) the calculation of the 60 days is as well for workers who are employed in the other Contracting State with several employers to carry out. The conditions of the cross-border property must be assessed separately for each employment relationship. Not return days are their overwhelming need to allocate the respective employment. A multiple account does not take place.

Section 10 certificate of the non-return days

(1) the employer determines at the end of the year or upon termination of employment during the calendar year, that eliminates the cross-border property on the basis of the respective return days, he has to certify the non-return days after official form completed. The form is both unsolicited for which such withholding of withholding tax tax authority to submit to, that provided returns this certificate after checking with an approval to the employer for onward transmission to the frontier. A review of the certified non-return days is allowed. Supporting documents may be required.
(2) is predictable for the employer that frontier workers with year-round employment will return more than 60 days per calendar year, with temporary employment during the calendar year after appropriate reduction, not at his residence for professional reasons, the activity state is for the time being entitled to charge withholding taxes. The employer has informally to certify this by pointing out that the detailed breakdown of days does not return at the end of the calendar year or, if the employment relationship is terminated earlier, certifying form completed for submission to the tax authorities at the end of the employment relationship on official the frontier workers. This circumstance is to take into account in the State of residence by a deferral of the tax or adjusting the personal income tax advance payments.

§ 11 basis and period following the occurrence of the residence certificate or the renewal the withholding tax 4.5 per cent of the gross amount of payments not exceed. For the calculation is the salary payment period. The basis (gross of fees) shall be determined according to the respective national tax law. The qualification by the occupation State binds the State of residence for purposes of the tax credit. Unless you have the property of frontier workers, the withholding tax deduction on all payments extends, regardless of where the work is carried out.

§ 12 State of residence Germany (1) crediting of withholding tax when the investment is however only if a separate tax certificate or a tax certificate on the wage statement about the withheld withholding tax is presented. This proof is to be issued at the request of the employee by the employer. Without the certificate pursuant to sentence 1 a withholding tax cannot be considered in estimating exposures.
(2) the employer at a frontier retain withholding tax of more than 4.5 percent of the gross compensation, is only a deduction of the withholding tax in the amount of 4.5 percent of the gross compensation. Paragraph shall accordingly apply 1 sentence 1. Too much withheld Swiss tax refund is not possible in Germany.

§ 13 principles of the tax calculation (1) for Swiss workers who meet the cross-border property in the sense of article 15 paragraph 2 of the agreement, is a stand-alone payroll tax deduction procedure of § deviant 39B of the income tax act. The different income tax deduction applies even if the Swiss frontier exceptionally unlimited or extended unlimited taxation is, because a double residence exists and article 4 does not apply paragraph 3 of the agreement is or the wage of a German public fund is involved under the other conditions of article 1 paragraph 3 of the income tax act.
(2) § 2 of the VAT implementing regulation applies for the term of the salary. Personal deductions, such as advertising costs, special editions and unusual stress, for which an exemption entry in question is (section 39a, 39B, paragraph 2 of the income tax Act), may not reduce the assessment basis for the reduced income tax.
(3) set 3 article 15a paragraph 1 also applies to the cases of the flat-rate income tax. The authoritative under the income tax act Pauschsteuersatz of 15 percent or 25 percent will be reduced accordingly. This applies regardless of whether a flat-rate income tax, like backup or part-timers for the entire labour or as in securing future services in addition to the remaining salary in question comes.
(4) if the employer returns during the entire calendar year on more than 60 days on the basis of his work exercise not at the residence, the full tax is to keep. This applies even if the employer recognizes that the workers is expected to exceed the 60 days.

§ 14 according to official calculated income tax is lower than 4.5 percent (1) the tax rate of 4.5 percent is irrelevant, if the Swiss frontier has submitted a certificate of residence or an extension and a reconciliation between the income tax calculated according to the official specifications and the reduced withholding tax reveals that the tabular wage tax is less than 4.5 percent of the total taxable salary of each wage payment period. The German employer shall perform a comparison calculation for low wage entitlement.
(2) a comparative calculation is unnecessary if the employer must make a tax deduction after the tax class VI.

Article 15 obligation to change the withholding tax obligation to the payroll tax post-clearance recovery remains even after the expiry of the calendar year. By way of derogation from section 41 c paragraph 3 of the income tax act is carried when Swiss frontier an amendment of the income tax deduction for the past year about the time of the tender of the wage tax certificate also next subsequent wage payments. Arises in the reverse case later that there are the conditions of the cross-border property, the employer is entitled to correct too much withheld income tax only to the certification of special wage tax. After this time the Swiss frontier may assert too much withheld income tax at the relevant facility financial Office only by a public claim under the provisions of the tax code (article 37 paragraph 2 of the tax code).

Proof of gross remuneration (1) for a German frontier workers the salary (gross of fees) section 16 official form completed by the Swiss tax administration must be made, and reimbursement of expenses separately list the employer.
(2) for a Swiss frontier has the German employer at termination of employment, to grant a special wage tax certificate according to official form at the latest at the end of the calendar year at the request of the frontier. Is by way of derogation from article 41 b of the income tax act to issue a tax certificate for the flat rate taxable wages; the lump sum taxed labour costs can be separately or certified in one lump sum with the remaining salary. May be also the certificate of the lump sum taxed salary in an attached Declaration; The same applies to the identification of the payroll tax, which accounts for these wages. In addition the employer is tax-free redundancy compensation according to § 3 number 9 of the income tax Act, as well as tax-free allowances for Sunday, according to § to certify 3 b of the income tax act public holiday or night work. The entries are in the official form in a free field to make and to make clearly identifiable as such.

Section 17 does not apply different special cases (1) the under article 15 paragraph 3 of the agreement is article 15a of the agreement covered by workers on Board of ships or aircraft in international traffic.
(2) the tax deduction for artists, musicians, athletes, and artists in the sense of article 17 of the agreement is not according to section 39B of the income tax Act, but according to § 50a of the income tax act perform. He is limited to 4.5 percent of the gross compensation for the mentioned group of persons. § 50 d of the income tax act shall remain unaffected.
(3) for pensions by cross-border workers from public funds, the tax deduction is limited to 4.5 percent, according to article 15a paragraph 1, if there is a certificate of residence. The residence certificate presented prior to the introduction of the Executive applies without temporal limitation on, unless there is a change of apartment.

§ 18 emigrants in the Switzerland (article 4 paragraph 4 of the Convention) (1) a partial exemption from withholding taxes according to § 39 b section 6 of the income tax act in wages comes from hikers so long not taken into consideration, as article 4 to apply paragraph 4 of the agreement.
(2) the scheme of referred to in article 4 paragraph 4 of the Convention is not to apply if the exit in the Switzerland because of marriage with a person of Swiss nationality.

(3) applies to the credit of Swiss taxes the payroll tax deduction procedure: in analogous application of § 39 b section 6 of the income tax act the employer on the basis of a credit certificate of establishment financial Office credits a certain amount as a Swiss tax provisionally on the German wage tax exceeding 4.5 per cent of the gross amount of the remuneration. The frontier emigrants has to apply for the credit certificate at the financial Office of the permanent establishment. He has the request to add its last Swiss tax - or advance notice. At the end of the calendar year, a disposition is performed final credit transfer of Swiss tax at the request of the frontier from wanderers. The request for implementation of the investment is to make at the same time with the application for the certificate of credit.
Section 4 officers, taxation officer (1) a partner of a partnership activity compensation receives third-party revenue section 19 as an employee, is the right to tax under article 7 paragraph 7 of the agreement notwithstanding the provisions of article 7 paragraph 8 of the agreement. Will be the work payments not added to the profit of the partnership according to the respective national tax law, article 15a of the agreement shall apply.
(2) to the article referred 15 paragraph 4 of the agreement Directors also Deputy Directors or Deputy Directors and Directors-General are. Article 15 paragraph 4 of the agreement is applicable only to persons, which function comprised of the scope of application of the regulation or power of Attorney in the commercial register is registered.
(3) for the income of executives from corporations that are not cross-border workers in the sense of article 15 of the agreement, the State of residence of the employer (company) has accounts for paragraph 4 of the agreement also right taxation, revenue on activities in the State of residence of the officers and third countries referred to in article 15. The taxation law of the State of residence of the officers shall remain unaffected.

Article 20 workers with income from third countries labour income of a worker who resides and is employed by a Swiss employer in the Federal Republic of Germany to article 15 paragraph 1 of the Convention only in so far as the Switzerland taxed when the work actually carried out. The place of the exercise of the work is to take on where the workers to carry out his activity personally (physically) is.
Section 5 other use cases article 21 maintenance to divorced or living permanently separated spouse or life partner of a repealed civil partnership or permanently separated living life partner (1) to article 21 of the agreement, alimony can be a divorced or permanently separated spouses living, which in a Contracting State and paid to a resident of the other Contracting State, taxable only in the other State. Sentence 1 shall apply accordingly for maintenance of life a repealed civil partnership or always separate living life partner.
(2) for such alimony, which causes a natural person established in Germany, same tax deductions are granted when the payer when calculating his taxable income he would receive if the recipients in Germany would be established. Requirement is that the recipient in Switzerland with these payments is subject to ordinary taxation and this is proved by a certificate of the competent cantonal tax authority.

Section 22 operational disposal pensions In the case of pensions, which are paid on the basis of the sale of a business (sale company, pensions), the State of establishment has the right of taxation in terms of sale profits. The recipient of the pension in this case selects the taxation as a subsequent operating revenue, taxation entitled so long the facility State, as pension payments exceed the present value of the pension. The taxation right passes on the State of residence of the recipient of the pension if the pension payments exceed the gains.

Article 23 successor company of the enterprises referred to in article 19 paragraph 3 of the agreement is (1) article 19 paragraph 3 of the Convention also apply to remuneration paid to civil servants who were employed previously on the Deutsche Post or Deutsche Bundesbahn and a privatised company, Deutsche Post AG, Deutsche Telekom AG or Deutsche Bahn AG, are retained while maintaining their civil service status.
(2) article 19 paragraph 3 of the agreement shall also apply to remuneration to persons are at Swisscom AG, the Swiss Federal Railways AG or Swiss PTT post has.

Workers compensation (1) is section 24 attach supply character to a severance package, the taxation right in accordance with article 18 of the agreement is to the State of residence. However, the (former) State of activity entitled taxation, if the compensation is wage - or salary payments or royalties from the previous employment relationship or the severance pay is generally granted for the premature retirement from the service. For the case that the workers also partly worked before leaving the service in the State in which he resides, the indemnity is pro rata temporis according to the taxation allocation of allowances to split.
(2) the severance payments on the occasion of the resolution of the employment relationship, received by a person resident in a Contracting State after moving out the activity state of their former employer resident in the other Contracting State, not taxed in the former State of activity, these severance payments in the State of residence of the person can be taxed.
Section 6 final provisions § 25 application provided for this regulation is for the first time to apply to tax matters since January 1, 2010.

Article 26 entry into force this regulation enter into force on the day after the announcement.

Concluding formula the Federal Council has approved.

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