Spontaneous Exchange of Rulings – Practical Implications

Author:Ms Susanne Schreiber, Daniel Bader, Paolo Bottini, Daniel U. Lehmann and Peter Reinarz
Profession:Bar & Karrer
 
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Switzerland will introduce the international spontaneous exchange of information in tax matters into domestic legislation on the basis of the signed Convention on Mutual Administrative Assistance in Tax Matters (the MAC). This additional kind of exchange of information will be implemented by way of a revision of the Federal Act on International Administrative Assistance in Tax Matters, which should come into force on 1 January 2017. The Federal Council has published the draft of the revised Ordinance on International Administrative Assistance in Tax Matters, which contains detailed provisions on how the spontaneous exchange of information will be implemented, and is currently finalising the ordinance based on the comments received during the consultation phase.

Background

The Ordinance is mainly based on the international standards as published in the final report on BEPS Action 5 as well as on the practice of other states regarding the spontaneous exchange of information. The OECD in Action 5 recommends to introduce the spontaneous cross-border exchange of tax rulings that relate to harmful tax practices or potentially contradict the principles of BEPs.

Currently, the OECD-member states around the world are amending their regulations in this regard.

Ruling Definition

A tax ruling is defined according to the Ordinance as oral or written advice, confirmation or assurance of a tax authority that: (i) is given to a taxpayer upon request; (ii) covers the tax consequences of a set of facts described by the taxpayer and (iii) on which the taxpayer can rely.

Ruling Categories

The following categories of tax rulings might be subject of a spontaneous exchange of information:

Rulings relating to the taxation as a holding company, a domicile company, a mixed company, with a principal allocation or a patent/license box; Unilateral tax rulings covering cross-border transfer prices; Cross-border rulings providing for an unilateral downward adjustment of the taxable income in Switzerland, that is not directly reflected in the financial statements; Cross-border rulings concerning the existence or absence of, and / or the attribution of profits to, a permanent establishment; Cross-border rulings related to conduit structures (as channeling via hybrid entities / hybrid flows). Scope of Exchange

Generally, only information with regard to income taxes, capital taxes or withholding taxes could be subject to a spontaneous exchange. Not in scope of a...

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