Insights

From 1 January 2025, online platforms will be obliged to register for value added tax (VAT) in Switzerland and Liechtenstein if small consignments worth at least CHF 100,000 are sold to domestic customers via their platform within one year. This registration obligation also applies if the platform does not act as a seller itself, but merely brings buyers and sellers together. The aim of the tax obligation is to ensure that sales to domestic customers are taxed correctly and do not remain untaxed.

Employed persons who are members of a pension fund can pay a maximum of CHF 7’056 into pillar 3a in 2024. The amount paid in can be deducted from income in the personal tax return 2024. Employees who are not affiliated to a pension fund may pay in a maximum of 20 % of their net income, the maximum amount is CHF 35’280. A payment can only be made in the corresponding calendar year, retroactive payments after the end of the calendar year are not possible.

On 1 January 2025, the partially revised value added tax (VAT) law will come into force. The administrative practice associated with the changes to the law and ordinances is still largely undefined, which is why many details regarding practical implementation are still open and require individual clarification. The changes to VAT affect both national and international companies operating in Switzerland and Liechtenstein. The changes are significant as they not only have an impact on tax liability, but may also entail administrative requirements and financial consequences.

Practice and doctrine assume different points in time for the due date of hidden profit distributions. The Swiss federal supreme court recently approved the Swiss federal tax authorities’ complaint in matters of public law against the judgment of the Federal Administrative Court and confirmed that the due date of hidden profit distributions should be the booking date. For simplicity and practical reasons, the end of the financial year is considered as the due date for several hidden profit distributions. Late interest of currently 4.75% becomes due 30 days after due date of hidden dividend distributions. To cover withholding tax liabilities and late interest thorough tax indemnification is crucial in M&A transactions.

The revised Swiss Data Protection Act (DPA) has been in force since September 1, 2023. Many financial service providers have implemented the new regulations in the meantime. In some cases, there are uncertainties regarding the disclosure of personal data abroad. Many companies are dependent on foreign (particularly American) software solutions.

Transfer prices must comply with the arm’s length principle, according to which transactions between affiliated companies should follow the same conditions that would be agreed between third parties. The Swiss legislator has not enacted any specific laws on transfer pricing. However, the arm’s length principle is implemented on the basis of various provisions in tax laws.

The FINMA requirement for explainability of AI-supported business models in the financial industry presents auditors with new challenges.

Stablecoin issuance projects have become increasingly important since 2019. In the new FINMA Guidance 06/2024, the supervisory authority provides information on the financial market law aspects of stablecoin projects and their impact on supervised institutions. In particular, FINMA defines certain minimum requirements for default guarantees from banks, which are often used by stablecoin issuers so that they are not subject to authorisation under banking law. FINMA also draws attention to the increased risks of money laundering and terrorist financing as well as the circumvention of sanctions and specifies the due diligence obligations of stablecoin issuers under anti-money laundering law.

Preventing greenwashing is becoming one of the key tasks for ensuring credibility and trust in the financial market.

On 4 September 2024, the Federal Council decided to introduce the GloBE Income Inclusion Rule as of 1 January 2025 that supplements the OECD/G20 minimum taxation as in force since 2024.

According to commercial law, a corporation may acquire its own shares provided it has freely disposable equity in the amount of the acquisition value and the nominal value of the own shares does not exceed 10% of the share capital according to the commercial register. If the acquisition is in connection with a restriction on transferability, the maximum limit is 20%. Shares acquired in excess of 10% must be sold within two years or canceled through a capital reduction.

A taxpayer had a debt to a Swiss limited liability company/GmbH held by him, for which the cantonal tax authorities had refrained from claiming a personal taxable income under certain conditions communicated in writing and accepted by the taxpayer. The taxpayer/borrower subsequently breached these conditions with the result that the cantonal tax authorities qualified the loan receivable as a simulated loan.

The importance of operational risk management for financial institutions continues to grow. On June 12, 2024, FINMA published Guidance 04/2024 on the management of operational risks of fund management companies and managers of collective assets. This communication underlines the regulator's efforts to strengthen risk management among all supervised financial market participants and presents possible measures for the institutions concerned. Our article summarizes the key measures and highlights their potential impact on financial institutions that are not directly covered by the supervisory communication.

The number of successful cyber attacks has been increasing for years. Cyber attacks are therefore one of the main risks for FINMA-supervised institutions. The new FINMA Guidance 03/2024 now describes specific requirements for dealing with cyber risks and answers common questions about reporting obligations. Although it is aimed at larger and more highly regulated institutions such as banks, the principles are also applicable as a guidance to smaller and medium-sized portfolio managers (Art. 17 of the Financial Institutions Act [FinIA]). In particular, the boards of directors of the institutions must also be prepared.

An indirect partial liquidation clause is standard in share purchase agreements. However, buyers are well-advised to carefully plan the acquisition of a Swiss target company as well as the subsequent integration and prepare together with sellers a defensive argumentation to disprove application of the indirect partial liquidation theory.

The Swiss federal supreme court recently confirmed the long-standing practice that hidden profit distributions are committed by submitting incorrect annual financial statements to the Swiss federal tax authorities.