The supplementary taxation (HZB), which is often disregarded in SME business practice, can lead to profits of German-controlled CH corporations in the trade/services sector being subject to “supplementary taxation” in Germany in the form of a fictitious dividend, which can result in overtaxation. In practice, HZB, which dates back to the 1970s, thus represents a massive obstacle to investment in relation to Switzerland. In addition, unrecognised HZB facts often lead to tax seizures and even to accusations under criminal tax law.
An escapement option in the form of a substance test is only available in EU countries. However, last year the Federal Fiscal Court decided in favour of extended supplementary taxation that the substance test is also applicable in relation to third countries, provided that an exchange of information takes place, which will be the case with Switzerland from 2011. As a result, the supplementary taxation as a whole should no longer be applicable in relation to Switzerland from 2001, provided that an actual economic activity carried out there can be proven. However, whether this very pleasing result for taxpayers resident in Germany with holdings in CH corporations will continue to apply in the future is rather questionable due to the reform of the supplementary taxation expected in the short term.
Details of current case law and the status of the planned reform with regard to supplementary taxation can be found in the article by our Managing Director Winfried Ruh in the current issue 6-7/2020 of the Swiss magazine EXPERT FOCUS.