Current Taxation of Trusts in Switzerland vs. Taxation according to the Draft of the Swiss Trust Law
On January 12, 2022, the consultation on the preliminary draft of a Swiss Trust Law was opened. The aim is to implement the trust in Swiss law, with the possibility that the trust vehicle, which is enjoying growing popularity worldwide, can also be established under Swiss law.
Tabea Gisler, 2022
Bachelor Thesis, KPMG AG
Betreuende Dozierende: Tobias Hüttche
Keywords: Switzerland, Trust, Taxation
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The codification is intended to create legal certainty and tax certainty. In principle, it has been possible to incorporate the criticisms of Circular 30 into the preliminary draft of the Swiss Trust Law. In particular, the attribution and economic capacity of the Revocable and Irrevocable Fixed Interest Trust are regulated under civil and tax law. For the Irrevocable Discretionary Trust, the advance pre-immigration privilege has been abolished. Two analyses were conducted to elaborate practicability and fairness of taxing the Irrevocable Discretionary Trust under the Trust Law.
The practicability analysis based on a case study shows that the draft does not clarify taxation in practice. In particular, questions remain open regarding the attribution of income generated by the trust. The fairness analysis reveals a conflict between attribution and economic capacity. In this respect, a clarification of the tax law is recommended. The recommendation is to take into account for the attribution the ratio of the distributions of the last ten years to the Swiss beneficiaries and to attribute the current income as well as the trust assets in the same ratio for taxation.
Another recommendation is the deletion of paragraph 4 of Article 10a DBG. Since with this paragraph, Switzerland deprives the right to tax the trust contrary to the DTA. In this way, Switzerland changes from a non-transparent to transparent taxation of the current trust income. This change seems arbitrary and should be abolished.
In addition, the proposal is considered fair compared to the taxation of trusts in the United Kingdom and Germany, as it does not provide excessive taxation but also does not provide unjustified tax advantages. Nonetheless, from an economic point of view, it is argued that the codification of the trust in Swiss law is not worthwhile. The costs of maintaining the laws and the expected court decisions due to the open-ended taxation of the Irrevocable Discretionary Trust are estimated to be higher than the actual returns.
Overall, from a tax perspective, enacting the legislation under the Preliminary Draft would avoid some inequities compared to taxation under Circular 30. However, the solutions create new issues to a roughly equal extent.
Studiengang: Business Administration International Management (Bachelor)
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