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Germany–Switzerland · Inheritance & Gifts

Tax treaty · Article 10 · Section 21 ErbStG

Double taxation of inheritances and gifts between Germany and Switzerland

If Germany and Switzerland tax the same transfer of assets, a distinction must be made between inheritances and gifts. Inheritances are covered by a special inheritance tax treaty, which allocates taxing rights and prevents double taxation, particularly through exemption or a tax credit. This agreement generally does not apply to ordinary lifetime gifts. In such cases, section 21 of the German Inheritance and Gift Tax Act (ErbStG) may allow a credit for Swiss gift tax that has actually been assessed and paid.

Two systems of relief

Inheritances and gifts follow different rules

When assets are transferred across borders, both Germany and Switzerland may have a right to impose tax under their respective domestic laws.

How this double taxation is prevented depends largely on whether the assets are transferred by inheritance or by gift.

For inheritances, the special Germany–Switzerland inheritance tax treaty must be applied first. Ordinary gifts, by contrast, generally do not benefit from equivalent general treaty relief.

Transfer of assets Primary relief provision Typical method
Inheritance involving Germany and Switzerland Germany–Switzerland inheritance tax treaty Exemption or tax credit under Article 10
Ordinary gift involving Germany and Switzerland The inheritance tax treaty generally does not apply Consider a tax credit under section 21 ErbStG
Gift of a business Assess the special Germany–Switzerland arrangement separately Depends on the specific classification

Acquisitions on death

The treaty takes precedence for inheritances

The special agreement between Germany and Switzerland applies to the estates of deceased persons who were domiciled in one or both contracting states at the time of death.

The agreement first allocates taxing rights for the different categories of assets.

Double taxation is then prevented, in particular through Article 10.

  • Article 5 – immovable property
  • Article 6 – permanent establishment assets
  • Article 8 – other assets
  • Article 8(2) – recipients in Germany
  • Article 9 – estate debts
  • Article 10 – exemption or tax credit

Article 10 of the treaty

Double taxation is not always eliminated using the same method

Article 10 of the inheritance tax treaty provides different forms of relief. Depending on the deceased’s domicile, nationality and the type of asset, relief may take the form of either an exemption or a credit for foreign tax.

It is therefore too broad to say that Swiss inheritance tax is always simply credited against German tax.

Treaty

Taxing rights

Articles 5 to 8 first determine which state may tax a particular asset.

Exempt

Exemption

Certain foreign assets may be excluded from the German tax base.

Credit

Tax credit

In other cases, the assets remain taxable and Swiss tax is credited against German tax.

Exemption method

Exemption does not always mean there is no effect on German tax

In certain cases, the inheritance tax treaty requires Germany to exempt assets from tax.

The treatment of immovable property located in Switzerland and owned by a Swiss national is particularly relevant.

Where the treaty exemption applies, the asset concerned is not directly subject to German inheritance tax.

However, the exempt assets may be taken into account when determining the tax rate applicable to the remaining taxable acquisition.

Exemption with progression for inheritance tax

The German Federal Fiscal Court (BFH) has confirmed that Swiss assets exempt under the treaty may be taken into account when determining the tax rate applicable to the remaining taxable acquisition.

Treaty exemption does not necessarily mean no tax impact

An asset exempt under the treaty may therefore increase the tax rate applied to other assets, even though it is not directly taxed in Germany.

Credit method

Under the credit method, the acquisition generally remains in the German tax base

Under the credit method, the asset generally remains subject to tax in Germany.

Swiss inheritance tax permitted under the treaty is then credited against German inheritance tax.

However, the credit cannot result in Germany refunding Swiss tax without limitation. It is capped at the German tax attributable to the foreign assets concerned.

Step Treatment
1. Value the acquisition Determine the German tax value under German valuation rules
2. Calculate German tax The acquisition generally remains part of the German tax base
3. Establish the Swiss tax Take account only of the relevant Swiss inheritance tax
4. Calculate the credit The credit is limited to the German tax attributable to the foreign assets concerned

Recipients in Germany

Article 8(2) can itself give rise to double taxation

One particular feature of the Germany–Switzerland inheritance tax treaty is the additional German taxing right in cases involving certain recipients resident in Germany.

If the recipient has a permanent home or habitual abode in Germany at the time of death, Article 8(2) generally allows Germany to impose additional tax, even though the deceased was resident in Switzerland.

This can bring the same estate within the scope of taxation in both Switzerland and Germany.

Article 8(2) therefore refers back to Article 10 so that the resulting double taxation is eliminated accordingly.

BFH II R 61/15

The Federal Fiscal Court emphasised that Germany’s supplementary taxing right under Article 8(2) must not be applied in isolation. The corresponding relief provisions in Article 10 must also be taken into account.

Lifetime gifts

The inheritance tax treaty generally does not apply to ordinary gifts

Gifts have a different starting point. The scope of the 1978 agreement covers estates and estate or inheritance taxes.

An ordinary lifetime gift therefore generally does not benefit from protection under this treaty.

For example, if a Swiss canton taxes a gift from a parent resident in Switzerland to a child living in Germany, unlimited German gift tax liability may also arise because of the child’s residence in Germany.

In this situation, section 21 ErbStG must be considered in particular as a basis for relief.

Do not apply the same treaty treatment to inheritances and gifts

The exemption and credit provisions of the inheritance tax treaty cannot simply be applied to an ordinary gift.

Section 21 ErbStG

When can Swiss gift tax be credited in Germany?

Section 21 ErbStG allows recipients subject to unlimited tax liability to claim a credit for a corresponding foreign tax, provided no applicable double taxation agreement takes precedence.

The foreign tax must have been assessed, be attributable to the recipient, have actually been paid and no longer be subject to any entitlement to a reduction.

The foreign assets concerned must also be subject to German inheritance or gift tax.

Requirement Section 21 ErbStG
Unlimited tax liability A case falling within section 2(1) no. 1 ErbStG
No treaty taking precedence Section 21(1) generally applies to the extent that no double taxation agreement applies
Foreign tax Must correspond to German inheritance or gift tax
Assessment The foreign tax must have been assessed
Payment The foreign tax must actually have been paid
No entitlement to a reduction There must be no remaining entitlement to a refund or reduction of the tax
The same assets are taxed The foreign assets must also be subject to German tax
Application The credit is not granted automatically

The amount of the credit is limited

If only part of the acquisition consists of foreign assets, the portion of German tax attributable to those assets is determined. Foreign tax can be credited only up to that amount of German tax.

Section 21 ErbStG also imposes a time limit

The German tax on the foreign assets must have arisen within the statutory five-year period following the date on which the foreign tax liability arose.

Case law

BFH II R 54/09: Swiss gift tax can be credited under section 21 ErbStG

BFH, 22 September 2010 – II R 54/09

Donor in Ticino, recipient in Germany

In the case before the court, the recipient’s mother lived in the canton of Ticino. She made cash gifts to her son, who was subject to tax in Germany.

Germany initially assessed German gift tax. Gift tax was subsequently also assessed in the canton of Ticino and paid by the recipient.

The BFH confirmed that the Swiss gift tax could, in principle, be credited against German gift tax under section 21(1) ErbStG.

Of particular practical importance was the fact that the Swiss tax was paid only after the German gift tax assessment had become final.

The BFH treated the subsequent payment of foreign tax eligible for a credit under section 21 ErbStG as an event with retroactive tax effect that could allow the German tax assessment to be amended.

Practical significance of the judgment

The German assessment need not necessarily be completed before the final Swiss gift tax liability is established. If the foreign tax is validly assessed and paid later, a German tax credit may still be claimed retrospectively, subject to the statutory requirements.

Supporting evidence

No credit without Swiss tax documentation

Section 21 ErbStG requires the recipient to substantiate the value of the foreign assets and the assessment and payment of the foreign tax.

In cases involving Switzerland, complete records of cantonal tax assessments and payment evidence should therefore be retained.

Assessment

Tax assessment

The cantonal inheritance or gift tax assessment.

Bank

Proof of payment

Evidence that the foreign tax has actually been paid.

Value

Asset documentation

Documents showing the value and location of the foreign assets.

Translations may be required

The German tax office may require a certified translation of documents in a foreign language. This issue generally does not arise for Swiss assessments issued in German.

Practical examples

Three different double taxation scenarios

Inheritance

Swiss real estate, heir in Germany

Switzerland may tax the property as the state in which it is located. Germany may also have a right to tax because of the recipient’s connection to Germany. The final relief is determined under the inheritance tax treaty.

Gift

Cash gift from Switzerland, recipient in Germany

Germany generally imposes tax because of the recipient’s connection to Germany. If the Swiss canton also levies gift tax, section 21 ErbStG must be considered in particular.

AG

Inheriting shares in a Swiss AG

Shares generally fall within Article 8 of the treaty. Where the recipient is in Germany, Article 8(2) may establish an additional German taxing right.

Calculation principle

A tax credit does not necessarily eliminate every additional burden

Where foreign tax is credited, the combined tax burden often amounts to at least the higher of the two effective tax burdens.

A higher Swiss tax liability cannot be offset against German tax without limitation. The German tax credit is capped.

Example Amount
German tax attributable to the Swiss assets EUR 80,000
Creditable Swiss tax EUR 50,000
Remaining German tax EUR 30,000
Combined tax burden EUR 80,000

If, by contrast, the Swiss tax amounts to EUR 100,000 while only EUR 80,000 of German tax is attributable to the foreign assets concerned, the credit is generally limited to the German maximum.

Assessment sequence

Address double taxation in eight steps

01

Type of acquisition

Distinguish between an inheritance and a gift.

02

Germany

Determine tax liability under German domestic law.

03

Switzerland

Determine cantonal tax liability and the amount of tax.

04

Tax treaty?

Apply the agreement to inheritances.

05

Method

Determine whether exemption or a tax credit applies.

06

Section 21

For gifts, assess the credit available under domestic law.

07

Evidence

Document the assessment, payment and asset values.

08

Assessments

Coordinate the German and Swiss tax assessments.

Frequently asked questions

Double taxation between Germany and Switzerland

Can an inheritance be taxed in both Germany and Switzerland?
Yes. Both states may initially have a right to impose tax under their domestic laws. The inheritance tax treaty then allocates and coordinates these taxing rights.
Is there an inheritance tax treaty between Germany and Switzerland?
Yes. A special agreement dated 30 November 1978 provides for the avoidance of double taxation with respect to estate and inheritance taxes.
Does this treaty also apply to gift tax?
Generally not to ordinary lifetime gifts. Where double taxation arises, section 21 ErbStG must therefore be considered in particular.
Is Swiss inheritance tax always credited in Germany?
No. The treaty provides for both exemption and a tax credit. The applicable method depends on the type of asset and the particular circumstances.
What does exemption mean?
The assets concerned are not directly subject to German inheritance tax. However, their value may, in certain circumstances, affect the tax rate applied to the remainder of the acquisition.
What does a tax credit mean?
The foreign asset generally remains included in the German tax calculation. The creditable foreign tax is then deducted from the German tax.
Can Swiss gift tax be credited in Germany?
Subject to the requirements of section 21 ErbStG, a corresponding Swiss gift tax may generally be credited against German gift tax.
What are the requirements of section 21 ErbStG?
Among other requirements, the foreign tax must have been assessed, be attributable to the recipient, have actually been paid and not be subject to any entitlement to a reduction. The foreign assets must also be subject to German tax.
Is the credit granted automatically?
No. Section 21 ErbStG provides for a credit on application. The required supporting evidence must be submitted.
Can the Swiss tax credit exceed the German tax liability?
No. The credit is generally limited to the German tax attributable to the foreign assets concerned.
What did the BFH decide in II R 54/09?
The BFH confirmed that Swiss gift tax could be credited under section 21 ErbStG. It also held that the later payment of creditable foreign tax may constitute an event with retroactive tax effect, allowing an already final German tax assessment to be amended.
What happens if the Swiss tax is assessed later?
Subject to the statutory requirements, the German tax credit may also be recognised retrospectively. The BFH’s case law is therefore important when coordinating the two tax procedures.
Which Swiss documents does the German tax office require?
In particular, documents showing the value of the foreign assets, the Swiss tax assessment and evidence that the Swiss tax has actually been paid.
Is the Swiss cantonal tax relevant?
Yes. Inheritance and gift taxes in Switzerland are generally governed at cantonal level. It is therefore necessary first to establish which canton actually imposes tax.
Should the German tax return wait until the Swiss assessment is available?
Not necessarily. German notification and filing obligations have their own deadlines. The procedures should be coordinated, with the possibility of a later credit for Swiss tax addressed under the applicable procedural rules.

Germany–Switzerland tax advice

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