Refund of Swiss WHT for persons abroad

Requirements

A claim for reimbursement of the WHT exists in the international relationship if:

• The income charged with withholding tax can be attributed to the applicant abroad.

• The individual or legal entity is a resident of a state with which Switzerland has a DTA. In principle, this presupposes that this person is subject to unlimited tax liability in the partner state on the basis of his domicile, permanent residence, place of management or other similar characteristics. The country of residence must confirm or certify this residence in the other country accordingly (so-called "Tax Residency Certificate").

• The person abroad held the right to use the asset yielding the taxable income at the time the taxable service was due. According to Jurisprudence , the right to use the asset requires that there is no legal or constructive obligation to pass on the dividend or the interest flow.

• In addition, it must be ruled out that the reimbursement of the Swiss WHT amounts to tax avoidance in the sense of an abuse of the agreement. According to the current practice of the Swiss Federal Tax Administration, in order to exclude an abuse of the treaty, it is checked with the foreign shareholder whether the necessary personal, functional or balance sheet substance is given abroad (see our blog post on treaty eligibility). In addition, the objectified circumvention facts developed by the Federal Tax Administration must be observed. See in particular our blog posts on the practice of old reserves, international transposition and representative liquidation.

• Further requirements such as holding period, legal form or shareholding ratio in the case of legal entities may arise on a case-by-case basis due to the applicable double taxation treaty.

Assertion of the claim

The application for reimbursement must generally be submitted within three years of the end of the calendar year in which the service was provided.

The application must be physically submitted to the Federal Tax Administration using forms specifically designed for this purpose. For some countries, specific forms exist that take into account the particularities of the respective double taxation agreement. In contrast, persons resident in Germany can now only complete their refund applications for the Swiss WHT online.

Conclusion

The process for the reimbursement of the Swiss WHT is associated with an increased administrative effort for individuals resident abroad, which is often not worthwhile, especially for foreign small investors who hold only individual securities.

For legal entities, Switzerland has the so-called reporting procedure for dividends in the international group relationship (i.e. for foreign legal entities as shareholders with a participation quota of at least 10%), according to which the WHT does not have to be submitted or only partially submitted and thus also not refunded, but can only be reported by means of forms 103/110 and 108.

The reporting procedure provides an important administrative and financial remedy, particularly in the case of foreign group relationships, as only a possible base amount of withholding tax has to be finally transferred to the Federal Tax Administration. The procedure must be applied for in advance using Form 823B or Form 823C and will be approved for five years as of January 1, 2023, provided the circumstances remain the same.

In principle, the introduction of an analogous reporting procedure for natural persons domiciled abroad would also be conceivable and justifiable under treaty law. Only recently, however, the Confederation clearly rejected proposals in the consultation procedure on the revision of the international reporting procedure that advocated an extension in this direction.