Resident foreign employees with no permanent residence Sample Clauses

Resident foreign employees with no permanent residence permit As only foreign nationals are subject to the Swiss-source taxation procedure for resident foreign employees with- out a permanent residence permit, the Federal Govern- ment recognizes that that procedure falls within the scope of Art. 21(2) of the AFMP.199 The Federal Govern- ment, however, emphasizes that either a subsequent ordinary taxation procedure applies if the threshold is reached or a correction of the source tax rates may be granted. It has, therefore, concluded that the source taxa- tion procedure complies overall (im Grossen und Ganzen) with the principle of equal treatment in the AFMP.200 In the author’s view, that source taxation procedure is a direct discriminatory measure in respect of the exercise of the free movement of workers prohibited, in principle, by Art. 9 (employed persons) of Annex I of the AFMP.201 The source tax rates take account of only lump sums, but not all kinds of objective tax and personal tax benefits. The threshold of CHF 120,000 (for Federal income tax purposes) is arbitrary. The withheld source tax is cred- ited without interest against the ordinary income tax. It also results in a cash flow disadvantage compared to the ordinary income taxation procedure. In addition, the correction of the source tax rates is not binding. This direct discrimination cannot be justified on the grounds of public order, public security or public health as listed in Art. 5 of Annex I of the AFMP. It may, how- ever, be justified on the grounds of the need to safeguard the collection of taxes in Art. 21(3) of the AFMP. Dis- criminatory measures must, however, comply with the principle of proportionality. All nationals of the old 15 Member States are generally taxed by virtue of the source taxation procedure for a period of five years and all nationals of the other 12 new Member States for a period of ten years.202 A source taxation procedure that excludes all categories of resident foreign employees without a permanent residence permit from the ordin- ary income taxation procedure and applies for such a long period, goes further than that necessary to safe- guard the collection of taxes. Even though the source taxation procedure would be qualified as an indirect discriminatory measure, argu- ments not capable of justifying a prohibited discrimina- tion or restriction include administrative difficulties, loss of tax revenue, the other advantages outweighing the disadvantage, residents and non-residents being in a different situation a...
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Related to Resident foreign employees with no permanent residence

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