August 18, 2022
Switzerland opens public consultation on material aspects of the OECD's Pillar Two minimum corporate tax
On 17 August 2022, the Swiss Federal Council opened the public consultation on the ordinance that will temporarily regulate the material aspects of the Organisation for Economic Co-operation and Development's (OECD) Pillar Two minimum corporate tax in Switzerland during a transition phase.
The ordinance includes a Swiss top-up tax (qualified domestic minimum top-up, "QDMTT") and an international top-up tax (income inclusion rule, "IIR," and undertaxed payments rule, "UTPR") in line with the Global Anti-Base Erosion (GloBE) Model Rules. The draft wording of the ordinance mainly refers to the GloBE Model Rules for the determination of the respective taxes and includes only very limited additional Swiss regulations.
All interested parties can comment on the proposed ordinance until 17 November 2022. The ordinance is intended to apply from 1 January 2024.
The basis of this ordinance is the constitutional amendment, which is currently being debated in the Swiss Parliament and will be subject to a public vote in June 2023 (for background, see EY Global Tax Alert, Swiss Federal Council releases dispatch on constitutional amendment for BEPS 2.0 implementation in Switzerland, dated 24 June 2022). The transitional provision included in the constitutional amendment authorizes the Swiss Federal Council to regulate the global minimum taxation of large corporate groups in Switzerland by way of a temporary ordinance until the permanent tax bill has been enacted through the regular legislative process and without time pressure. This phased approach is taken to ensure a timely implementation of Pillar Two in Switzerland.
As expected from the constitutional amendment and all previous communications, the ordinance includes provisions for a Swiss top-up tax (QDMTT) and an international top-up tax (IIR and UTPR).
The draft wording of the ordinance does not include any detailed regulations for the implementation of the respective taxes in Switzerland. Instead, the ordinance refers to the GloBE Model Rules dated 14 December 2021 and declares them directly applicable in Switzerland. It notes that the rules are to be interpreted in line with the OECD Commentary to the GloBE Model Rules and other related guidance (e.g., the Implementation Framework). A potential new version of the GloBE Model Rules, the Commentary and/or the Implementation Framework would not automatically apply in Switzerland but would rather need to be analyzed from a Swiss perspective to determine the impact and the potential update of the Swiss ordinance, if needed.
With this approach Switzerland wants to ensure full international compatibility. The Swiss Federal Council notes that the GloBE Model Rules are rather detailed and specific in many areas, therefore leaving Switzerland little room to modify. It is deemed to be crucial that the Swiss implementation fully complies with the GloBE Model Rules while also taking into account the modalities of the implementation in other jurisdictions, such as the European Union (EU) Member States and the United States. Some items of the implementation in Switzerland will therefore remain unclear until at least the end of 2022, when the OECD is expected to release the Implementation Framework.
The ordinance further clarifies that the Swiss QDMTT is allocated between Swiss constituent entities based on the top-up tax that would result if calculated separately for every Swiss constituent entity. The UTPR is allocated between Swiss constituent entities based on the same GloBE Model Rules that apply for the international allocation between different jurisdictions.
The draft ordinance does not include new information with regard to the reinvestment of the additional tax revenue to strengthen the attractiveness of Switzerland as a business location. It is still foreseen that 25% of the additional tax revenue will be allocated to the federation and that the remaining 75% will be designated for the cantons.
All interested parties can comment on the proposed draft ordinance until 17 November 2022. The Swiss Federal Council will release the final version of the ordinance after the formal enactment of the constitutional amendment. The final version may deviate from the draft ordinance considering any comments made during the consultation procedure as well as any further developments in the Pillar Two project.
The draft ordinance does not include a fixed date for entry into force. Based on the commentary released together with the draft ordinance, the Swiss Federal Council still expects implementation as of 1 January 2024. Different from other jurisdictions Switzerland currently plans to implement all aspects of the ordinance at the same time, which would also include the UTPR as of 2024. This is in line with the timing always communicated by Switzerland (i.e., IIR implementation one year later than contemplated by the GloBE Model Rules; UTPR implementation in line with GloBE Model Rules). Neither the draft ordinance nor the commentary explicitly comment on the expected delays in other jurisdictions (e.g., IIR as of 2024 and UTPR as of 2025 in the EU and the United Kingdom). However, it is noted that the developments and potential delays in other jurisdictions would be considered when making the final decision on the entry into force of the ordinance in Switzerland.
The Swiss Federal Council is expected to publish a second ordinance regulating the procedural aspects. A public consultation for that second ordinance is expected later this year after the OECD releases its Agreed Administrative Guidance. Both ordinances will apply for a transition period until the Swiss Parliament enacts the permanent tax bill that will replace the ordinances.
For additional information with respect to this Alert, please contact the following:
Ernst & Young Ltd, Zurich
Ernst & Young Ltd, Geneva
Ernst & Young Ltd, Zug
Ernst & Young Ltd, St. Gallen
Ernst & Young LLP (United States), Swiss Tax Desk, New York
Ernst & Young LLP (United States), Swiss Tax Desk, San Francisco