Switzerland: Federal Supreme Court rejects offshore financing of a Swiss real estate group
International Tax Review is part of the Delinian Group, Delinian Limited, 4 Bouverie Street, London, EC4Y 8AX, Registered in England & Wales, Company number 00954730
Copyright © Delinian Limited and its affiliated companies 2024

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 & bottom lb ros

More from across our site

Mazars needs to do all it can to capitalise on TP as a growth area, ex-Deloitte TP director Jeremy Brown has told ITR
Sanjay Sanghvi and Raghav Bajaj of Khaitan & Co provide a practical guide for foreign investors looking to capitalise on Indian’s investment potential
The newly launched Tax Responsibility and Transparency Index will assess the ethicality of companies’ tax practices against global standards and regulations
The reported warning follows EY accumulating extra debt to deal with the costs of its failed Project Everest
Law firms that pay close attention to their client relationships are more likely to win repeat work, according to a survey of nearly 29,000 in-house counsel
Paul Griggs, the firm’s inbound US senior partner, will reverse a move by the incumbent leader; in other news, RSM has announced its new CEO
The EMEA research period is open until May 31
Luis Coronado suggests companies should embrace technology to assist with TP data reporting, as the ‘big four’ firm unveils a TP survey of over 1,000 professionals
The proposed matrix will help revenue officers track intra-company transactions from multinationals
The full list of finalists has been revealed and the winners will be presented on June 20 at the Metropolitan Club in New York
Gift this article