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9 May 2023

Global minimum taxation is coming

As of January 1, 2024, the provisions of the global minimum taxation will probably also apply to Swiss companies.

Implementation of the reallocation of taxation rights to market states (Pillar One) and the global minimum tax (Pillar Two) made great progress in 2022. While the timing of Pillar One's introduction is still uncertain, as is the question of whether it will be introduced at all, Pillar Two will very likely come into force in the EU, Switzerland and other countries from January 1, 2024. At the end of 2022, the Organization for Economic Cooperation and Development (OECD) published so-called "Safe Harbour Rules" which provide, in particular, for substantial relief for corporations in certain cases. In February 2023, they published the "Administrative Guidance", which provided companies and tax authorities with further clarification on the implementation of the minimum tax. In addition, the Swiss Parliament approved the procedure proposed by the Federal Council for the implementation of Pillar Two.

Taxation of cross-border activities and global minimum taxation

142 countries of the OECD and the G20 group of twenty major industrialized and emerging countries, together the so-called "Inclusive Framework" - including Switzerland - agreed to a comprehensive global tax reform. The global tax reform aims to introduce a worldwide redistribution of profits of multinational corporations with a turnover of more than 20 billion euros (Pillar One) and a global minimum taxation of 15% for multinational corporations with a turnover of more than 750 million euros (Pillar Two). The implementation of the reform will pose major challenges for companies, but also for states.

The following key takeaways can be drawn from developments in 2022 through the end of April 2023:

  • Introduction of the global minimum tax as of January 1, 2024
    The countries of the European Union and probably also most other OECD countries will introduce the global minimum tax as of January 1, 2024. In Switzerland the introduction and implementation of global minimum taxation requires a constitutional amendment on which the Swiss people will vote on June 18, 2023. If approved, Switzerland will probably also introduce the global minimum tax as of January 1, 2024.
  • Transitional Safe Harbour Rules
    According to the OECD, a simplified method to clarify whether there is an obligation to pay additional tax should be possible for financial years beginning on or before December 31, 2026. This will be based on data from country-by-country reporting. These Transitional Safe Harbour Rules are a welcome relief, but only if it is already clear in advance, with a high degree of probability, that the multinational corporation meets one of the three tests provided for in a state. If this is uncertain, the data required to calculate the global minimum tax must still be provided to enable a detailed calculation of the global minimum tax if necessary.
  • GloBE Information Return
    In December 2022, the OECD published a tax return (GloBE Information Return), by means of which corporations should provide the national tax authorities with the information necessary for the levying of the global minimum tax. The systematic structure of the tax return is helpful in understanding the practical calculation of the global minimum tax and the information required for it.
  • Administrative Guidance
    The Administrative Guidance published by the OECD in February 2023 clarifies, among other things, that the US minimum tax (Global Intangible Low Taxed Income [GILTI]) is not considered equivalent to the global minimum tax. For corporations based in the US, this may lead to double taxation of their profits under certain circumstances. For companies based in Switzerland, the "Equity Investment Inclusion Election" published in the Administrative Guidance, which makes the system of investment deduction compatible with the OECD minimum tax, is encouraging. The Administrative Guidance contains further helpful clarifications on several potential implementation issues.

Below, we detail the developments in Pillar One and Pillar Two from the beginning of 2022 through the end of April 2023.

1. Pillar One

Pillar One will result in companies being taxable in a state even if they do not have physical facilities such as offices, factories or other premises in that state. It is thus intended to ensure "fair" taxation of sales from digital services, such as Netflix or Amazon. However, Pillar One will not only apply to profits from such digital sales. Indeed, large corporations will generally have to pay tax on what the OECD define as excess profit in market states - exceptions will only be made for companies in the extractive and regulated financial industries. At least 25% of profits exceeding 10% of sales, amount A, will be taxed regardless of the existence of a physical presence in the states where the sales are made.[1] In addition, Pillar One also contains a so-called "Amount B", which provides for a simplified arm's length principle to compensate for routine marketing and sales activities performed locally by the company and to relieve companies from the arm's length proof still required today. This amount B is expected to be set as a percentage of sales generated in the market (so-called "transactional net margin method").[2] In addition, Pillar One will also include a dispute resolution and prevention mechanism for amount A, so that double taxation of the same profit by two or more states should be prevented. Countries that want to introduce Pillar One will presumably have to commit to repealing (sales) taxes on digital transactions that have already been introduced.[3]

In 2022, the OECD conducted several public consultations with its member countries and other stakeholders on the proposed model rules through which Pillar One will be implemented.

These public consultations concerned the model rules on (i) the determination of the tax nexus and geographical source of income, (ii) the determination of the tax base, (iii) the scope of taxation, (iv) the definition of an exemption from Pillar One for companies directly engaged in extractive activities, (v) the definition of an exception for the financial services industry, (vi) the rules to prevent double taxation, (vii) the determination of Amount B, and (viii) a multilateral agreement planned for mid-2023, by means of which the countries are to commit themselves to the introduction of Pillar One under common rules. In addition, interim status reports on the determination of Pillar A were published in July and October of 2022.

Pillar One launch uncertain

The OECD hopes that sufficient countries of the Inclusive Framework will agree on the introduction of Pillar One and the aforementioned model provisions in a multilateral agreement in mid-2023, so that Pillar One can enter into force on January 1, 2024. Whether this ambitious timeline can be met is currently difficult to judge - it is possible that the introduction will be postponed to January 1, 2025, or that Pillar One will not come into effect at all. What is clear is that the longer the implementation of Pillar One drags on, the more states will implement unilateral taxes on revenues from digital services. Governments will need increased resources on an ongoing basis for government support for Covid-19, measures to curb inflation and other expenditure. However, if states unilaterally reintroduce their own taxes on digital revenues, this poses the risk of double taxation for businesses. In addition, the past has shown that the USA in particular reacts to the introduction of such taxes with countermeasures. Without a coordinated introduction of Pillar One, increased trade conflicts are therefore to be expected in the future.

2. Pillar Two

Pillar Two will introduce a global minimum tax of 15%. This minimum tax rate will be calculated at the level of the respective states and not at the level of the individual companies (jurisdictional blending). For the calculation of the effective tax rate (Global Anti Base Erosion Effective Tax Rate [GloBE ETR]), the taxes paid by the Group entities and permanent establishments in the respective state and recognized by the OECD (covered taxes) are set in relation to the profits generated by these entities in that respective state (GloBE income). In order to take into account the existing substance of the group locally, a portion of the profit, 5% each on the book value of property, plant and equipment and on personnel expenses, is to be allocated exclusively to the country of domicile (substance-based carve outs). In addition, the taxable profit and the taxable net income according to a recognized accounting standard, e.g. IFRS, US GAAP or Swiss GAAP FER, and not the profit according to local legislation, such as Swiss commercial law, will be decisive for the calculation of the global minimum tax. If the effective tax rate calculated in this way is less than 15%, a sophisticated set of rules ensures that the difference between the effective tax rate and the minimum tax rate, the top-up tax, is ultimately levied anyway:

  • If the country of residence of these companies has itself introduced a national supplementary tax (Qualified Domestic Minimum Top-up Tax or QDMTT), the country of residence has the right to levy the supplementary tax itself;
  • If the country of residence has not introduced a national supplementary tax, the country of residence of the ultimate parent entity (UPE) has the right to levy an international supplementary tax until the minimum tax in relation to these companies is reached (income inclusion rule or IIR);
  • If the country of residence of the ultimate parent company does not levy an international supplementary tax, the countries in which the subordinate parent entities (sub-holdings) are located have the right to tax these entities on the basis of the IIR, if these countries have implemented the global minimum tax;
  • If no IIR is applicable, e.g. because neither the country of the ultimate parent company nor the countries of the subordinate intermediate companies levy an IIR, the difference to the minimum tax can be levied by all states in which companies of the group are located and which have introduced the so-called "Under taxed Payment Rule" (UTPR). If more than one state levies the UTPR, it is allocated on the basis of the substance - personnel expenses and property, plant and equipment - existing in these states.

In addition, Pillar Two also contains a so-called "Subject to Tax Rule" (STTR), which is to be stipulated in the bilateral double taxation agreements. The STTR is intended to allow certain economically weak states to levy an additional non-recoverable withholding tax on royalty, interest or similar payments if these payments are taxed at a statutory rate of less than 9% in the recipient state.

3. Pillar Two: Developments 2022

In 2022, the implementation of the global minimum tax took concrete shape. In December 2021, the OECD published its model rules for the implementation and calculation of the minimum tax (Global Anti-Base Erosion (GloBE) Rules - Pillar Two).[4] In March 2022, the commentary to these model rules was published, which also contained individual examples of implementation and calculation of the minimum tax. In April 2022, the OECD held a public consultation event on the approach to implementing the minimum tax.[5] The issues discussed at this event eventually led to the publication in December 2022 of three important documents with further specifications on the implementation of the global minimum tax: (i) Safe Harbour and Penalty Relief, (ii) Tax Certainty for the GloBE rules, and (iii) GloBE Information Return.

Safe Harbour and Penalty Relief [6]

The OECD proposes that for a transitional period, for fiscal years beginning on or before December 31, 2026, whether there is an obligation to pay a supplementary tax can be clarified in a simplified manner without having to take into account the extensive provisions of Pillar Two. The multinational corporations that fall under the global minimum tax in terms of their size will not have to pay a supplementary tax if certain conditions are met. The data required to test these conditions should be taken primarily from the Country-by-Country Reporting (CbCR), which these groups already have to prepare and exchange with the tax administrations.[7] For the calculation of the subsequent tests, the data only requires slight adjustment. For example, taxes that may not be taken into account according to the GloBE model regulations, e.g. provisions for uncertain tax positions, are to be deducted from the tax expense reported in the CbCR for a state. However, deferred tax expense will be taken into account. In addition, the states are also to be given the right to reject a calculation based on a group's CbCR if this does not meet certain minimum standards. There are also special rules if a state has entities that are not taken into account under the CbCR or the GloBE model rules (e.g. entities that are to be sold [held for sale]). During the transitional period, if one of the following tests is met, the imposition of a supplementary tax is to be waived in the jurisdiction(s) which passed one of these tests (Transitional CbCR Safe Harbour):

De minimis test:
The turnover in the individual state is less than 10 million euros and the profit made in that state is less than 1 million euros or a loss is made in the state.

Simplified ETR test:
The effective tax expense in a state determined on the basis of the CbCR after making the aforementioned corrections must be at least equal to the transitional rate defined by the OECD (2024: 15%, 2025: 16%, 2026: 17%).

Routine profits test:
The pre-tax profit generated in a state is equal to or less than the aforementioned substance-based carve-out. In this case, the profit generated by the entities in the country does not exceed the routine profit. If a loss is realized in a state overall, this test is also met.

Provided that the group's CbCR is recognized by the local tax authority, the Transitional CbCR Safe Harbour offers welcome relief from the extensive documentation requirements associated with global minimum taxation - provided that the group meets one of the aforementioned tests. However, it is only possible to definitively determine whether the Transitional CbCR Safe Harbour is met after the close of a financial year. If it is determined at the end of the year that this is not the case, or if the local tax authority of a state assesses the CbCR as insufficient, the group must still fulfill all documentation requirements of the global minimum taxation. In most cases, therefore, groups will not be able to avoid ensuring that the data required to meet the extensive documentation requirements are collected and, if necessary,  available at the end of the year.

In addition to the Transitional CbCR Safe Harbour, a Permanent Safe Harbour and a Simplified Calculations Safe Harbour are to be introduced. The calculations required for these are not to be linked to the data from the CbCR, but are to be based on a simplified assessment of profit, turnover and taxes.

Nevertheless, the calculations based on these simplified data should lead to the same result as those under the comprehensive rules of the global minimum taxation. The Simplified Calculations Safe Harbour, in turn, consists of the aforementioned three tests, at least one of which must be met. The effective tax rate to be met for the Simplified ETR Test will be equal to the global minimum tax rate, currently at 15%. So far, however, the OECD has only defined general principles for the simplified assessment without making any concrete proposals. It remains to be seen how extensive the simplifications will ultimately be. In addition, the Inclusive Framework is currently working on a Qualified Domestic Minimum Top-up Tax (QDMTT) safe harbour, which would allow corporations to waive the filing of a GloBE calculation (for the respective state) in addition to the calculation of the domestic supplementary tax. Finally, under the OECD's proposal, penalties would be waived during the transition period if a corporation took "reasonable steps" to file a correct GloBE tax return.

Tax Certainty for the GloBE rule [8]

Pillar Two, i.e. the global minimum taxation, is to be implemented by the members of the Inclusive Framework according to common rules, the GloBE Model Rules, i.e. incorporated in the tax laws of the participating states. Each state independently implements these Model Rules into its laws and regulations. Consistent implementation is to be ensured primarily through the common Model Rules, the commentary thereto, and other commonly agreed rules, such as the aforementioned Transitional CbCR Safe Harbour. However, it is already clear that the Model Rules are being interpreted differently in different countries, which could lead to double taxation of profits, e.g. if one country levies a national supplementary tax and the other country levies an international supplementary tax on the same income because it does not recognize the national supplementary tax of the other country. The OECD would therefore like to introduce cross-state dispute resolution mechanisms that avoid such controversies as far as possible (dispute prevention mechanisms) or resolve them afterwards (dispute resolution mechanisms). On December 20, 2022, it launched a public consultation on the instruments it proposes for this purpose. According to the OECD's proposal, the most important instrument for avoiding conflicts is to be a multilateral review process through which the implementation of the GloBE rules, i.e. the IIR, QDMTT and UTPR, is reviewed in the countries and the country is then confirmed as compliant (qualified rule status). In resolving double taxation conflicts, it is proposed, among other things, to introduce a system similar to the mutual agreement procedure that exists today under double taxation agreements, where the group can present its case in the event of a taxation conflict and the states concerned must then agree on a joint solution. This does not change the fact that uncertainty will exist for years.

GloBE Information Return [9]

At the same time, a public consultation was launched on a possible GloBE tax return, by means of which groups are to provide the national tax authorities with the information required for the levying of the global minimum tax. This GloBE tax return is also to be filed upon compliance with the Transitional Safe Harbors in order to demonstrate group-wide compliance with the GloBE minimum tax. The GloBE tax return consists of two general chapters (General Information and Corporate Structure) and two chapters dealing with the necessary calculations (ETR Computation & Top-up Tax Computation and Top-up Tax allocation & attribution). The tax return is structured systematically and helps in understanding how the effective tax rate under Pillar Two, the GloBE-ETR and how the international supplementary tax (IIR) is calculated. Groups affected by the global minimum taxation can use the GloBE tax return to determine what data they need to calculate the GloBE ETR or comply with the GloBE documentation requirements.

4. Pillar Two: Developments in 2023

Administrative Guidance

On February 2, 2023, the OECD published the Agreed Administrative Guidance on the GloBE Model Rules (Pillar Two) (Administrative Guidance).[10] This document finalizes the GloBE rules. It ensures that global tax authorities have a common understanding of the rules so that they are implemented in a coordinated and administrative manner. In particular, the Administrative Guidance provides clarification on how to account for the U.S. Global Intangible Low Taxed Income [GILTI] minimum tax and on the design of the national supplementary tax (QDMTT).

Accordingly, GILTI is not considered a qualifying national supplementary tax. However, it will be classified as a so-called "blended controlled foreign corporation (CFC) tax regime" in a transitional phase until 2027. Accordingly, if a U.S. company pays a GILTI minimum tax, this is tax not allocated to the U.S. company itself but to the entities it holds and is taken into account when calculating the GloBE-ETR of these entities. However, if these entities are located in a country that has introduced a national supplementary tax (QDMTT), they are not taken into account for the calculation of this supplementary tax (see below).

The Administrative Guidance emphasizes that the design of the national supplementary tax must be consistent with the design of the GloBE rules and should lead to results that are in line with the GloBE rules. However, the design of the national supplemental tax rules may be more stringent than the GloBE rules. For example, the definition of covered taxes may be more narrowly defined, or it is also permitted to apply the national supplementary tax to groups that do not exceed the turnover limit for GloBE of currently 750 million Euro or are not internationally active. The Administrative Guidance now clarifies that the national supplementary tax will be calculated first and before all other taxes, i.e. excluding IIR and any CFC taxes. This is intended to reduce the complexity in calculating the national supplementary tax and to ensure that the application of the national supplementary tax does not result in a tax burden that is lower than the GloBE-ETR. The OECD assumes that a paid national supplementary tax will always be creditable against any CFC tax owed and thus there will be no double taxation. It is to be hoped that this will actually be the case in practice.

Furthermore, the Administrative Guidance contains clarifications on transitional rules, the treatment of gains and losses arising from different types of income and the application of the GloBE rules to insurance companies. Of particular interest for companies domiciled in Switzerland is the now possible "Equity Investment Inclusion Election". By means of this election, a company can opt that investment income which is taxable in its country of domicile and valuation allowances on investments which are tax deductible are taken into account in the calculation of the GloBE-ETR. This avoids the calculation of a too low (or too high) GloBE-ETR. This option allows Swiss resident companies to ensure that they do not suffer any disadvantage in the calculation of the GloBE-ETR due to the application of the participation deduction.

The Administrative Guidance will be incorporated into an updated commentary to the Pillar Two Model Rules, which is scheduled for publication later this year.

Upcoming developments in 2023

  • Finalize the Subject to Tax Rule and the multilateral instrument necessary to implement it;
  • Publication of the OECD standardized XML dataset for global data exchange mentioned in the GloBE Information Return;
  • Implementation of GloBE governance and a GloBE IT solution as well as reporting, especially in the case of listing.

5. Pillar Two: Conclusion of the developments in 2022 and 2023

As shown, the implementation of the GloBE minimum tax has taken concrete shape in 2022. In particular, the GloBE tax return published in December 2022 helps groups to identify which data must be available in the group at the entity level in order to be able to calculate the group's GloBE effective tax rate per state. The Transitional Safe Harbour Rules are a welcome relief, but only if it is clear in advance, with a high degree of probability, that the group meets one of the three tests in a state. If this is uncertain, the data necessary to calculate the GloBE-ETR must still be provided to ensure a detailed calculation of the GloBE-ETR, if necessary. Last but not least, the Administrative Guidance provides explanation to tax authorities and businesses on how to implement the minimum tax. Now that it is clear that GILTI does not qualify as a full-fledged national supplemental tax, U.S.-based multinational corporations face the risk that a portion of their profits will be taxed in another state because, after all, GILTI is not allocated to the U.S. corporation itself, but to the entities it owns. It will therefore be interesting to see whether the U.S. will modify GILTI in the next few years so that it qualifies as a national supplementary tax (QDMTT) under the GloBE rules.

6. Pillar Two: Implementation in the European Union

On December 15, 2022, the Council of Europe adopted the EU directive on the implementation of Pillar Two, at the same time confirming the will to implement Pillar One.[11] This decision became possible only after Hungary agreed to implement Pillar Two, thus achieving the unity on tax issues necessary in the EU. The EU member states will now enact the necessary legislation at national level so that the global minimum tax can come into force throughout the EU on January 1, 2024.

7. Pillar Two: Implementation in Switzerland

Switzerland was also active in 2022 and is expected to be able to introduce the global minimum tax as of January 1, 2024. After the Federal Council decided on January 12, 2022, to implement the minimum tax by amending the constitution[12], it launched a consultation on March 11, 2023, on the planned federal decree on a special taxation of large companies, by means of which the constitution is to be amended.[13] In particular, the constitutional amendment will give the Federal Council the right to temporarily enact the provisions necessary for the implementation of the global minimum taxation by way of ordinance. These would apply until the legal provisions approved by the Federal Parliament come into force. Finally, on June 23, 2022, the Federal Council published its dispatch on the federal decree on special taxation of large corporate groups.[14] The Federal Council proposes to implement Pillar One and Pillar Two. When implementing the global minimum tax, it wants to implement all rules, i.e. also introduce a national supplementary tax (QDMTT) and thus ensure that the additional tax substrate remains in Switzerland and does not flow to other countries. The additional tax substrate is to flow 75% to the respective domicile cantons of these companies and 25% to the federal government. The Federal Council already launched the consultation on the Ordinance on the Minimum Taxation of Large Corporate Groups (Minimum Taxation Ordinance, MindStV)[15] on August 17, 2022

Concrete implementation of the global minimum tax in Switzerland (Minimum Tax Ordinance).

The Ordinance adopts the Model Rules developed by the OECD's inclusive framework by means of a static reference to the GloBE Model Rules of 14 December 2021. The Ordinance further provides for the introduction of all rules including a Swiss Supplementary Tax (QDMTT). From a technical point of view, the Ordinance only refers to the Model Rules of December 14, 2021 and declares them to be directly applicable or applicable mutatis mutandis with regard to the Swiss Supplementary Tax, which is not regulated in the Model Rules. Within Switzerland, the IIR is attributed to the ultimate parent company in Switzerland. The Swiss supplementary tax is allocated to the entities in Switzerland in proportion to the extent to which they were the cause of the under-taxation. The additional revenues are therefore in principle to be allocated to the cantons and municipalities in which the low-taxed entities are domiciled. Only 25 % of this additional revenue will accrue to the federal government. More than half of the explanatory report deals with the distribution of the expected additional revenues - although it is generally assumed that these will mainly be temporary additional revenues, as corporations will response to the increased tax level.

We expect that for large corporations, a low taxation will be less important in the future, so that other factors such as proximity to customers, the availability of a qualified workforce or the availability of government subsidies will take on greater importance in their choice of location. Nevertheless, it should be noted that no minimum tax is levied on the profit allocated to the substance-based carve-out, i.e. on 5% each of the book value of property, plant and equipment and personnel expenses, and that therefore a low effective tax rate can still be attractive for large corporations. Smaller groups or companies that are not subject to the global minimum tax also continue to benefit from low effective tax rates. However, only time will tell whether large corporations will continue to locate in Switzerland to the same extent as they have in the past, or whether their profits will accrue here. According to the federal decree, the cantons will be responsible for levying the global minimum tax under federal supervision (federalist system). The procedural law on this will not go out for consultation until the course of 2023.

Next steps

On December 16, 2022, the Federal Decree on a special taxation of large corporate groups and the distribution of the expected additional revenues contained therein (75% cantons, 25% federal government) was finally adopted by the National Council and the Council of States.[16] As the federal resolution provides for a constitutional amendment, it is subject to a mandatory referendum. The Swiss people will therefore vote on the introduction of global minimum taxation in Switzerland, in particular the introduction of a Swiss supplementary tax, on June 18, 2023. Provided the people approve the constitutional amendment, Switzerland is expected to introduce global minimum taxation as of January 1, 2024.[17]

Assessment of the implementation of the global minimum tax in Switzerland

The federalist implementation of the global minimum tax - the minimum tax is to be levied by the cantons under federal supervision - was welcomed by a large majority.[18] However, during the consultation on the Minimum Tax Ordinance, the business associations economiesuisse and EXPERTsuisse, among others, were critical of the static reference to the model regulations of December 14, 2021, and a dynamic reference was demanded - although this is problematic from a constitutional point of view in the view of the Federal Council. Only a dynamic reference would ensure that the implementation of the global minimum tax in Switzerland would be recognized by the other countries of the Inclusive Framework (see comments above on Tax Certainty for the GloBE Rules). These two associations are also critical of the introduction of the UTPR by Switzerland. By means of the UTPR, profits of entities that do not belong to Switzerland for tax purposes are to be taxed in Switzerland, provided that there is under-taxation abroad and the ultimate parent company or an underlying parent company does not levy the supplementary tax in any country of residence. The introduction of a UTPR is seen as not very productive and highly complex; moreover, not introducing it would send a signal in favour of Switzerland as an attractive and competitive location for international business.[19] It is unclear whether Switzerland would still be considered compliant in the sense of the GloBE model provisions by the other states if it were to refrain from introducing the UTPR. Furthermore, with regard to the calculation of the Swiss supplementary tax (QDMTT), which is not regulated in the Model Rules, it is also not clear how taxes from a foreign CFC regime, e.g. the German interest barrier or the US minimum tax (GILTI), are to be treated. The Model Rules provide that these taxes are to be credited against any international supplementary tax. According to EXPERTsuisse, the same should also apply to the Swiss supplementary tax, as otherwise an additional tax burden would arise in the amount of the CFC tax. According to the Administrative Guidance now published in February 2023, it is clear that taxes from a foreign CFC regime may not be taken into account when calculating the Swiss supplementary tax. It is therefore to be hoped that any supplementary tax paid will always be creditable against any CFC tax of another country payable on the same profits, as stipulated by the OECD. Otherwise, this will lead to increased double taxation of profits. In addition, it also became clear in 2022 that the Model Rules, in particular those for calculating the effective tax rate, i.e. the GloBE-ETR, are in part not compatible with the Swiss tax system.[20]  Here, the Administrative Guidance now published and the "Equity Investment Inclusion Election" introduced with it seem to provide at least some remedy. However, assessing the tax impact of the global minimum tax on the taxes payable by Swiss entities is not easy in many cases. An understanding of Swiss tax and commercial law as well as Model Rules and recognized accounting standards (including IFRS, US GAAP, Swiss GAAP FER) is required to identify the tax impact of a transaction or accounting entry in a Swiss entity. Even if a company is not subject to the minimum taxation rules in Switzerland, these may have an impact on the structuring of the transaction, e.g. in the case of an acquisition of that company by a company which is subject to these minimum taxation rules.

8. Conclusion

We assume that the global minimum tax will be introduced in Switzerland, the member states of the European Union and other countries as of January 1, 2024. We therefore recommend that groups and companies clarify whether they are affected by the global minimum tax and examine its impact - if this has not already been done. The impact of the global minimum taxation on companies based in Switzerland will vary depending on the individual situation. In particular, the differences between the Swiss tax system and the tax system on which the Model Rules are based, as well as the differences between the accounting under Swiss commercial law that is relevant for Swiss taxes and the accounting under an international accounting standard that is relevant for global minimum taxation, may lead to unexpected tax consequences. If a company in Switzerland has a patent box, benefits from additional research and development deductions or takes advantage of other tax instruments of the last tax reform, it should be noted that these instruments are "harmful" from the perspective of global minimum taxation, as they lead to a reduction of the effective tax rate. If the GloBE-ETR falls below the minimum tax rate of currently 15% through the use of these instruments, the company may only benefit from taxation below 15% under the substance-based carve-out. In these cases, it is therefore necessary to examine whether the above-mentioned regimes still make sense, especially since they also involve a certain amount of effort. The outcome will indeed depend on the specific circumstances. It is to be expected that the Pillar One and Pillar Two project of the OECD will not be the last project with which the OECD wants to enforce a "fairer" taxation. At present, there is no end in sight to this development, so that it cannot be ruled out that a "fairer" taxation of wealthy individuals could become a future focus.

If you have any questions or require further information, please do not hesitate to contact the tax team.

Author: Adrian Briner

[1] See Fact Sheet Amount AG, Progress Report on Amount A of Pillar One dated July 11, 2022, page 3, accessed online December 18, 2023 at:

[2] See Public Consultation Document: Pillar One - Amount B, December 8, 2022, para. 2, accessed online January 18, 2023, at: one-relating-to-the-simplification-of-transfer-pricing-rules.htm.

[3] See Public Consultation Document: Pillar One - Amount A: Draft Multilateral Convention Provisions on Digital Services Taxes and other Relevant Similar Measures, page 1, accessed online January 18, 2023 at:

[4] Tax Challanges Risisng from the Digitization of the Economy - Global Anti-Base Erosion Model Rules (Pillar Two), December 20, 2022, accessed online January 18, 2023 at:

[5] Presentation on the Public Consultation meeting on the implementation of the framework for the global minimum tax, held April 25, 2022, accessed online January 18, 2023 at:

[6] Cf. Safe Harbour and Penalty Relief: Global Anti-Base Eros ion Rules (Pillar Two), accessed online January 19, 2023:

[7] CbCR is the automatic exchange of country-by-country reports by multinational companies. They include the worldwide distribution of sales, taxes paid, other key figures by country and information on all legal entities of a multinational group. This enables tax administrations to assess transfer pricing and profit shifting (see FTA website, Country-by-Country Reporting CbCR, accessed online Jan. 19, 2023:

[8] Public Consultation Document: Pillar Two - Tax Certainty for the GloBE Rules, December 20, 2022, accessed online January 20, 2023 at:

[9] Public Consultation Document: Pillar Two - GloBE Information Return, December 20, 2022, accessed online January 20, 2023 at:

[10] Tax Challenges Arising from the Digitalisation of the Economy - Administrative Guidance on the Global Anti Base Erosion Model Rules (Pillar Two), accessed online April 20, 2023 at:

[11] International Taxation: Council Reaches Agreement on Minimum Level of Taxation for Largest Corporations, Council of the EU, accessed online January 20, 2023 at:

[12]See OECD Minimum Tax: Implement with a Constitutional Amendment, dated January 13, 2022, accessed online January 20, 2022 at:

[13] See Federal Council Opens Consultation on Implementation of OECD/G20 Minimum Tax, dated March 11, 2022, accessed online January 20, 2023 at:

[14] Federal Government Regulates Implementation of OECD Minimum Tax in Switzerland, June 23, 2022, accessed online January 20, 2023 at:

[15] OECD/G20 minimum taxation: Federal Council opens consultation, August 18, 2018, accessed online January 20, 2023 at:

[16] Federal Decree on Special Taxation of Large Groups of Companies (Implementation of the OECD/G20 Project on Taxation of the Digital Economy), Curia Vista, accessed online January 20, 2023 at:

[17] From today's perspective, the Federal Council assumes that the regulations will enter into force on January 1, 2024. In its decision to bring the regulations into force, the Federal Council will examine how far implementation has progressed in other countries. If implementation in other countries is delayed, the Federal Council will reconsider the entry into force of the ordinance (cf. Explanatory Report on the Minimum Tax Ordinance, para. 2.2).

[18] See. Christoph A. Schaltegger, Andrea Opel, Federalist Implementation of the OECD Minimum Tax (Best Possible Solution by the Federal Council), in: Expert Focus 2022, pp. 160 ff.

[19] The non-introduction of the UTPR would particularly benefit companies domiciled in countries that have not introduced the global minimum taxation.

[20] Cf. on this and the following: Daniel Gentsch, Alain Horat, Principles of Calculation of the GloBE Tax Rate (A Swiss view on the calculation principles), in: Expert Focus 2022, pp. 132 ff.

Category: Tax


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