Safe Haven interest rates for the year 2023

If loans from shareholders or other related parties to Swiss companies (liability loans) are subject to excessive interest, this constitutes a payment in kind subject to WHT to the extent of the excessive interest as well as a hidden profit distribution to be offset for income tax purposes.

The Federal Tax Administration (FTA) publishes so-called safe haven interest rates annually. When applying these "official" interest rates, the FTA assumes without further proof that the interest paid is in line with market conditions. The correct application of these safe haven interest rates therefore protects against negative surprises and, above all, creates legal and planning certainty for companies domiciled in Switzerland with regard to their financing activities.

The FTA published the applicable interest rates for the year 2023 online in its annual circular on February 7, 2023 and February 8, 2023, respectively. The safe haven interest rates have increased, in some cases significantly, both for loans in Swiss francs from and to Swiss companies and for loans in foreign currencies from and to Swiss companies.

Loans in Swiss francs from Swiss companies (loan receivables)

For equity-financed loans in Swiss francs granted by a Swiss company to its shareholders or other related parties, the FTA requires a minimum interest rate of 1.5% in 2023 (previously 0.25%).

For debt-financed loans, the minimum interest rate required by the FTA for 2023 corresponds - as in previous years - to the Swiss company's borrowing costs plus a surcharge of 0.5% for loans up to CHF 10 million (or a surcharge of 0.25% for the amount exceeding CHF 10 million). These minimum interest rate requirements ensure a minimum net income from lending at the level of the Swiss company.

Loans in Swiss francs to Swiss companies (loan payables)

As of January 1, 2023, loans to related parties in Swiss francs must bear interest at a rate of at least 1.5% if the loan is financed from equity (previously 0.25%).

For loans received by a Swiss company from shareholders or other related parties, the SFTA allows maximum interest rates as follows:

• Operating loans of up to CHF 1 million to a Swiss trading or manufacturing company in Swiss francs may bear interest at a maximum rate of 3.75% (previously 3%) or, from CHF 1 million, at a maximum rate of 2.25% (previously 1%).
• Loans to holding and asset management companies may bear interest at a maximum rate of 3.25% (previously 2.5%) or, from CHF 1 million, at a maximum rate of 2% (previously 0.75%).

Loans in foreign currencies from Swiss companies (loan receivables)

If loans are not granted in Swiss francs but in a foreign currency, other safe haven interest rates must be applied. The FTA publishes the permissible interest rates for the most common foreign currencies in a separate circular.

Except for loans denominated in Chinese renminbi and Japanese yen, the FTA has increased the minimum permissible interest rates on loans denominated in foreign currencies, in some cases substantially, compared with the previous year 2022.

The permissible minimum interest rate for loans in EUR, for example, increases sixfold from 0.5% in 2022 to 3.0% in 2023.The permissible minimum interest rate for loans in USD increases from 2% in 2022 to 3.75% in 2023.

Loans in foreign currencies to Swiss companies (loan payables)

The interest rates according to the table in the circular are applicable for loans from Swiss companies to shareholders or related parties. In terms of a safe haven solution, according to the FTA, for loans in foreign currency from shareholders or related parties to Swiss companies, the same spread (up to equivalent value CHF 1 million 2.25% or 1.75%; from equivalent value CHF 1 million 0.75% or 0.5%) can be taken into account analogously to the circular of the FTA regarding tax-recognized interest rates 2023 for loans in Swiss francs for so-called operating loans.

In applying the circulars, it should be noted that Safe Haven interest rates are based on the relevant interest period, not the interest maturity. For example, for an annual interest due date of 6/30/2023, an average of the Safe Haven interest rates for 2022 and 2023 applies.

Case study: loan payable in EUR

A natural person resident in France is the sole shareholder of a Swiss manufacturing company. The shareholder grants the company an open-ended loan in the amount of EUR 1 million in 2022 (assumption: exchange rate CHF-EUR = 1:1) with interest due at the end of June each year (i.e. for the first time on June 30, 2023).

The permissible interest rate for EUR loans according to Circular 2022 is 3.25%, taking into account an analogous spread as for loans in Swiss francs. For the year 2023, the permissible interest rate is 5.25% (i.e. 3% plus a spread of 2.25%).

Thus, as of June 30, 2023, the EUR 1 million loan may bear interest at a maximum of 4.25% [3.25% plus 5.25% divided by two] in line with the Safe Haven interest rates.

Conclusion

Due to developments on the capital market, the FTA has increased the permissible safe harbor interest rates for 2023, in some cases significantly.

In particular, we recommend that all Swiss companies with large loan positions (on the asset or liability side) on their books review the corresponding contracts for 2023 with regard to possible transfer pricing issues. The new, higher permissible interest rates may also offer tax opportunities for some structures.