Switzerland: Federal Supreme Court rejects offshore financing of a Swiss real estate group

International Tax Review is part of Legal Benchmarking Limited, 1-2 Paris Garden, London, SE1 8ND

Copyright © Legal Benchmarking Limited and its affiliated companies 2025

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Switzerland: Federal Supreme Court rejects offshore financing of a Swiss real estate group

savoia.jpg

Reto Savoia

Sufficient substance in an offshore financing branch of a Swiss company is required so that the foreign branch qualifies as a foreign permanent establishment. In this case, an entirely Swiss-based real estate group managed its finance activities through a Cayman Islands branch of a Swiss finance company. While the finance company had no employees in Switzerland, the Cayman branch had four part-time employees working 20% each.

Based on a ruling with the cantonal tax authorities, the Cayman Island branch constituted a permanent establishment to which all income of the finance company would be allocated and exempt from the Swiss tax base.

The Swiss Federal Tax Administration decided that the ruling would no longer be valid for direct federal tax purposes and subsequently appealed the decision of the cantonal administrative court – which upheld the existence of a permanent establishment – before the Federal Supreme Court. On October 5 2012 the Federal Supreme Court denied the existence of a permanent establishment in the Cayman Islands and ruled that all income of the Cayman branch was taxable in Switzerland.

The decision by the Swiss Federal Supreme Court to tax all financing income in Switzerland and not in the Cayman branch was based on the grounds that the activities of the Cayman Islands branch did not rise to the level of a permanent establishment which would merit an income allocation to the Cayman branch. The court in particular highlighted the fact that although there were four part-time employees in the Cayman branch their total compensation amounted to only $50,000 a year, while they managed a loan portfolio of several hundred million dollars.

In view of the above court case it will be all the more important to make sure that there are sufficient activities and substance in a foreign financing branch so that it qualifies as a foreign permanent establishment.

Reto Savoia (rsavoia@deloitte.ch)

Deloitte

Tel: +41 (0)58 279 63 57

more across site & shared bottom lb ros

More from across our site

Firms are spending serious money to expand their tax advisory practices internationally – this proves that the tax practice is no mere sideshow
The controversial deal would ‘preserve the gains achieved under pillar two’, the OECD said; in other news, HMRC outlined its approach to dealing with ‘harmful’ tax advisers
Former EY and Deloitte tax specialists will staff the new operation, which provides the firm with new offices in Tokyo and Osaka
TP is a growing priority for West and Central African tax authorities, writes Winnie Maliko, but enforcement remains inconsistent, and data limitations persist
The UK tax agency has appointed six independent industry specialists to the panel
The two tax partners have significant experience and expertise in transactional and tax structuring matters
Katie Leah’s arrival marks a significant step in Skadden’s ambition to build a specialised, 10-partner London tax team by 2030, the firm’s European tax head tells ITR
Increasingly, clients are looking for different advisers to the established players, Ryan’s president for European and Asia Pacific operations tells ITR
Using tax to enhance its standing as a funds location is behind Luxembourg’s measures aimed at clarifying ATAD 2 and making its carried interest regime more attractive
Encompassing everything from international scandals to seismic political events, it’s a privilege to cover the intriguing world of tax
Gift this article