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Germany–Switzerland · Residence

Tax Treaty Residence with Homes in Germany and Switzerland

If you have a home in both Germany and Switzerland, you may be resident for tax purposes under the domestic laws of both countries. The Germany–Switzerland double taxation agreement then applies a fixed sequence of tests to determine which country you are treated as resident in for treaty purposes. The permanent home and centre of vital interests are particularly important.

Article 4 of the Germany–Switzerland tax treaty

Having homes in both countries does not automatically mean dual treaty residence

A person can have a residence in Germany under German tax law and, at the same time, be tax resident in Switzerland under Swiss tax law. Under their respective domestic laws, both countries may therefore initially treat the person as subject to unlimited tax liability.

This dual residence must be resolved for the purposes of applying the double taxation agreement. Article 4(2) of the Germany–Switzerland tax treaty provides a sequence of tests for this purpose.

The individual criteria are not simply weighed against one another. They must be applied in a specific order. The next test is considered only if the preceding test does not determine residence conclusively.

Tie-breaker rules

The sequence of tests under Article 4(2)

If a person is resident in both countries, their residence for treaty purposes is determined by applying the tests in a fixed order.

1

Permanent home

If a permanent home is available to the person in only one country, they are generally treated as resident in that country for treaty purposes.

2

Centre of vital interests

If a permanent home is available in both countries, the next question is which country the person has closer personal and economic relations with.

3

Habitual abode

If the centre of vital interests cannot be determined, habitual abode is the next criterion for determining treaty residence.

4

Nationality

If the person has a habitual abode in both countries or in neither country, nationality is considered next.

5

Mutual agreement procedure

If the person is a national of both countries or of neither country, the competent authorities must resolve the residence question by mutual agreement.

Permanent home

First, establish where a home is available on a continuing basis

A permanent home requires accommodation suitable for living in that is available to the person on a continuing basis and forms part of their normal pattern of life.

Ownership is not essential. A rented apartment can also constitute a permanent home, and a second home may be relevant as well.

What matters is whether the home is actually available and intended for the person's own stays. By contrast, property let to a third party on a long-term basis will generally not constitute a permanent home available to the owner.

Two permanent homes

If a permanent home is available in both Germany and Switzerland, the centre of vital interests is the next test

DE

A home in Germany

A home that remains available for personal use may continue to constitute a permanent home even after moving to Switzerland.

CH

A home in Switzerland

Establishing a home in Switzerland that is available on a continuing basis will typically mean having a permanent home there as well.

DTA

Both countries

If a permanent home is available in both countries, this criterion alone does not resolve residence. The centre of vital interests must then be examined.

Centre of vital interests

Personal and economic relations are considered together

The centre of vital interests is in the country with which the person has closer personal and economic relations overall.

There is no single mathematical formula. Instead, the objectively identifiable circumstances of the individual case are assessed as a whole.

  • Spouse and family
  • Social and community ties
  • Professional activities
  • Businesses and ownership interests
  • Where assets are managed
  • Personal ties and day-to-day living arrangements

Personal relations

Family and actual living arrangements often carry significant weight

FAM

Spouse and children

Where the person's immediate family normally lives is generally an important indicator of their personal relations.

SOC

Personal connections

Community, cultural and social ties may also form part of the overall assessment.

USE

Use of the homes

The actual use of the homes and the organisation of daily life also indicate which country is the centre of the person's life.

Economic relations

The place of work alone does not automatically determine treaty residence

Professional and economic relations must also be considered when determining the centre of vital interests. These include employment, businesses, ownership interests, asset management and other significant economic activities.

Working in Switzerland does not necessarily mean that the person's centre of vital interests is also in Switzerland. Equally, continuing economic connections with Germany do not automatically establish German treaty residence.

The overall assessment of personal and economic relations is decisive.

Factor Germany Switzerland
Family A spouse or children continue to live permanently in Germany. The family moves to Switzerland and conducts its daily life there.
Work Significant professional activities or a business remain in Germany. Ongoing professional activities and a permanent place of work in Switzerland.
Homes The former family home continues to be used extensively. The Swiss home becomes the person's actual main home.
Social ties Daily life and social connections remain predominantly in Germany. New, lasting personal and community ties are established in Switzerland.
Assets and businesses Significant economic activities are conducted from Germany. Economic activities and asset management shift to Switzerland.

The next tie-breaker test

With homes in both countries, habitual abode is examined if the centre of vital interests cannot be determined

Days spent in each country matter when a person has homes in both countries, but they are not the first step in the treaty residence analysis.

If permanent homes are available in both countries and it is not possible to establish where the person's closer personal and economic relations lie, the next question is where they have a habitual abode.

The person's actual pattern of life over an extended period is relevant. This is not simply an isolated assessment of a single calendar year or the application of an automatic 183-day rule.

Nationality

Nationality is considered only at the next stage

If a person has a habitual abode in both countries or in neither country, they are generally treated as resident for treaty purposes in the country of which they are a national.

If they hold both German and Swiss nationality, or neither nationality, residence cannot be conclusively determined at this stage. The competent authorities of the two countries must then resolve the question by mutual agreement.

A special rule in the Swiss treaty

Swiss treaty residence does not necessarily end German taxation on an unlimited basis

Article 4(3) of the Germany–Switzerland tax treaty contains a special rule. Under certain conditions, it can give Germany additional taxing rights even where a person is treated as resident in Switzerland under the tie-breaker rules.

This provision is particularly relevant where a permanent home remains available in Germany.

  • First determine treaty residence under Article 4(2)
  • Check whether a permanent home remains available in Germany
  • Examine the length of stays in Germany
  • Apply Article 4(3) separately
  • Account for treaty relief in respect of Swiss tax
  • Then assess the overall tax burden

Germany's overriding taxation rule

Article 4(3) is particularly important where homes are maintained in Germany and Switzerland

Under many double taxation agreements, the tie-breaker rules treat a person as resident in only one country for treaty purposes, while the other country may exercise only the source-country taxing rights expressly allocated to it.

The Germany–Switzerland tax treaty goes further in certain circumstances. If a person who is resident in Switzerland for treaty purposes continues to have a permanent home available in Germany, or otherwise meets the conditions of Article 4(3), Germany may apply its overriding taxation rule.

Anyone planning to move to Switzerland should therefore assess the tax implications of retaining a German home before the move.

Example

Moving to Switzerland while keeping a home available in Germany

1

Domestic law

The person moves into a home in Zurich but keeps a home in Germany available for personal use whenever needed. German residence may therefore continue under German law while Swiss tax liability arises at the same time.

2

Permanent homes under the treaty

Because a permanent home is available in both countries, residence cannot be determined by the first tie-breaker test alone.

3

Centre of vital interests

For example, if the family moves to Switzerland and work and daily life shift there on a lasting basis, the centre of vital interests may be in Switzerland.

4

Article 4(3)

Despite Swiss treaty residence, it is then necessary to assess whether the retained German permanent home triggers Germany's special overriding taxation rule.

Documentation

Which facts should be documented for treaty residence?

HOME

Living arrangements

Tenancy agreements, ownership, availability and actual use of the homes in both countries.

FAM

Family

Where the spouse and children live and how family life is actually organised.

JOB

Work

Place of work, employer, businesses, business management and other significant economic activities.

DAY

Days of presence

Actual stays in Germany, Switzerland and other countries should be documented clearly and consistently.

SOC

Personal ties

Community and personal connections may form part of the overall assessment of the centre of vital interests.

ASSET

Economic relations

Businesses, ownership interests, property and the location of significant economic decisions may also be relevant.

Common misconceptions

What does not determine treaty residence on its own

183

“I spend more than 183 days in Switzerland”

The number of days does not automatically determine treaty residence. Permanent homes and the centre of vital interests must be examined first.

REG

“I have deregistered in Germany”

Deregistration with the local registration authority does not, on its own, determine either German residence for tax purposes or treaty residence.

JOB

“I now work in Switzerland”

A Swiss place of work is an important economic factor, but it does not automatically establish the centre of vital interests.

CH

“I am tax resident in Switzerland”

Even Swiss treaty residence does not necessarily prevent additional German taxation because of the special provisions of the Germany–Switzerland tax treaty.

Frequently asked questions

Treaty residence with homes in Germany and Switzerland

Can I be tax resident in both Germany and Switzerland at the same time?
Dual residence is generally possible under the countries' respective domestic tax laws. For the purposes of the Germany–Switzerland tax treaty, however, residence is allocated to one country under the tie-breaker rules in Article 4(2).
What is a permanent home?
A permanent home is accommodation suitable for living in that is available to the person on a continuing basis and actually forms part of their normal pattern of life. Ownership is not required.
What does centre of vital interests mean?
It refers to the country with which the person has closer personal and economic relations overall. Relevant factors include family, professional activities, social ties, businesses, asset management and actual living arrangements.
Is family more important than the place of work?
There is no rigid rule giving one factor priority. Personal and economic relations must be assessed as a whole. However, where the immediate family lives can be a particularly significant indicator of personal relations.
Does the 183-day rule determine my treaty residence?
No. The 183-day rule is not a general rule for determining treaty residence. Where a person has homes in both countries, permanent homes and the centre of vital interests are examined first.
What happens if the centre of vital interests cannot be determined?
Habitual abode is considered next. If that test does not resolve residence, nationality is examined. If residence still cannot be determined, the competent authorities must find a solution by mutual agreement.
Does Swiss treaty residence automatically end my unlimited German tax liability?
No. German tax liability under domestic law and treaty residence are separate questions. In addition, Article 4(3) of the Germany–Switzerland tax treaty contains a special rule that permits additional German taxation under certain conditions despite Swiss treaty residence.
What if I keep my German home after moving?
You may retain a German residence for tax purposes and a permanent home within the meaning of the treaty. In addition to applying the tie-breaker rules, Article 4(3) of the Germany–Switzerland tax treaty must therefore be considered in particular.

Germany–Switzerland tax advice

Do you have homes in both Germany and Switzerland?

We assess tax residence under German and Swiss law, the treaty's tie-breaker rules, the centre of vital interests and the effects of the special provisions of the Germany–Switzerland tax treaty.

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