Switzerland - Family Matters On Line

Reform of the Swiss Federal Withholding Tax on Interest

For a number of years, endeavors to reform the Swiss federal withholding tax system with regard to the taxation of interest from collective debt instruments have been going on. The reform is generally aimed at strengthening the Swiss debt capital market. The latest proposals would completely do away with federal withholding tax on bond interest.

Background to the reform – the current withholding tax system

Under the current rules, interest paid or accrued on collective debt instruments – so called “bonds” and “debentures” – issued by Swiss resident issuers, as well as interest arising on deposits with Swiss banks is subject to federal withholding tax at the statutory tax rate of 35%. In contrast, interest paid on private and commercial loans, as well as interest paid on collective debt instruments issued by non-Swiss issuers is generally not subject to Swiss federal withholding tax.

Taxable bond and debenture defined

The notions of “bond and “debenture” for federal withholding tax purposes are quite broad. Generally, taxable “collective debt” instruments are defined as written debt acknowledgments for fixed amounts which are issued in multiple tranches at comparable conditions for the purpose of collective financing, and which allow the investor to evidence, reclaim or transfer its receivable claim.

A debt instrument is qualified as a taxable “bond” if it meets all of the following criteria:

The borrower issues written debt acknowledgments over fixed amounts;
the debt acknowledgments are based on a single credit arrangement and have identical conditions;
the lenders include more than ten non-banks (including certain types of sub-participants), i.e. not including Swiss or foreign banks as defined by the Swiss Federal Banking Act or comparable foreign banking legislation at the place of establishment of the lender; and
the aggregate amount borrowed under the arrangement amounts to at least CHF 500’000.

A loan or similar debt instrument is qualified as a taxable “debenture” for federal withholding tax purposes where the following conditions are all met:

The borrower issues written debt acknowledgments over fixed amounts;
the debt acknowledgments may have variable conditions;
the lenders include more than 20 non-banks (as described above); and
the total borrowed amount corresponds to at least CHF 500,000.

Taxable Swiss bank deposit defined

Interest paid by Swiss banks as well as Swiss branches of foreign banks acting under a banking license on “customer deposits” is likewise subject to federal withholding tax at the statutory rate of 35%. A taxable “customer deposit” includes debt funds raised by any Swiss resident entity that publicly solicits interest-bearing deposits, or continuously accepts interest-bearing deposits from more than 100 depositors – other than Swiss or foreign banks as defined by the applicable banking legislation – whereby the aggregate amount of the “deposits” amounts to at least CHF 5,000,000.

The federal withholding tax rules exclude Swiss and foreign banks (as described above), as well as any corporate entities under the control or covered by accounting consolidation of the Swiss resident borrower as potentially “harmful” lenders or “depositors that may trigger an interest withholding tax liability for the debt arrangement.

The rather complex definitions of the notions of “bond” and “bank customer deposit” under current withholding tax regulations make it necessary to include fairly restrictive language in syndicated bank loan facilities for Swiss resident borrowers with regard to transfers of any loan portions to “non-bank” investors, to prevent the Swiss borrower from becoming liable for the deduction and payment of interest withholding taxes whenever any of the “non-bank lender” thresholds are exceeded.

Swiss versus non-Swiss issuers/borrowers

Collective debt instruments such as “bonds” or “debentures” as well as “customer deposits” (taking the above-mentioned “non-bank rules” into account) result in a federal interest withholding tax liability where the issuer or borrower is a Swiss resident person or entity. Under certain circumstances, debt formally issued abroad, through a non-Swiss issuer may be deemed to be issued by or on behalf a Swiss resident borrower, and thereby trigger federal interest withholding tax liability. Such will be the case under the following, cumulative conditions:

The (actual or deemed, see above) bond/debenture is guaranteed by a direct or indirect Swiss parent company of the foreign issuer (down-stream guarantee);
the proceeds from the issuance of the bond/debenture are directly or indirectly on-lent to one or more Swiss affiliates of the foreign issuer; and
such on-lending to Swiss affiliates exceeds the sum of (i) the combined accounting equity of all non-Swiss subsidiaries directly or indirectly controlled by the Swiss parent company, plus (ii) the aggregate amount of loans granted by the Swiss parent and its Swiss subsidiaries to its non-Swiss affiliates.

The “debtor system”

Swiss federal withholding tax on dividends and certain types of interest is based on the so-called “debtor system”: The law technically defines the debtor of the taxable payment as the person liable to tax. In particular, where a debt instrument qualifies as a taxable “bond” or “debenture”, the Swiss resident borrower or issuer owes the 35% withholding tax to the Federal Government, irrespective of the nature or fiscal residence of the investor and beneficiary of the interest payment. At the same time, the Withholding Tax Act requires the debtor to shift the economic burden of the withholding tax to the investor, i.e. the beneficiary of the taxable interest payment. Thus, the debtor is legally required to deduct the applicable withholding tax from the taxable gross payment, and to submit such tax to the Federal Tax Administration. Any private arrangements designed to circumvent the debtor’s duty to impose the withholding tax burden upon the income beneficiary are declared null and void by the Withholding Tax Act.

Functions of the federal withholding tax

The function of the federal withholding depends crucially on whether the investor into a taxable equity or debt instrument is a Swiss or foreign resident for tax purposes:

For Swiss resident investors / income beneficiaries, the federal withholding tax essentially fulfills the function of a mere ”safeguarding” tax, designed to ensure full compliance with the investor’s income tax and net worth tax obligations. Swiss resident individuals and corporate entities beneficiaries may fully reclaim the withholding tax, if they duly report the income in their tax return, or in their accounts used for tax purposes (as applicable) and meet some further conditions, such as beneficial ownership of the income and absence of any tax avoidance. Failure to “spontaneously” declare (or report) the income principally leads to a forfeiture of any withholding tax refund claims.
For foreign resident investors, the federal withholding tax has a strictly fiscal purpose: Federal withholding tax is principally meant to constitute a final tax burden, with no possibility for a subsequent refund or initial relief at source. Partial or (in some cases) full relief of the federal withholding tax may exclusively be obtained on the basis of international double taxation or similar treaties between Switzerland and the investor’s country of tax residence, to the extent that such treaties limit the authority of Switzerland as a source country to impose withholding taxes.

The 35% federal withholding tax on interest hits all Swiss and foreign resident investors into “collective” debt instruments, including certain types of syndicated loans and revolving debt facilities where the “non-bank rules” are not complied with. This has rendered the issuance of such debt by or through Swiss resident issuers somewhat unattractive, given that the Swiss debtor has to initially deduct the full tax from the taxable interest payment under all circumstances regardless of the nature and tax residence of the investors, without any possibility for a relief at source. Foreign resident investors need to rely on a double tax treaty to obtain any subsequent refund of the withholding tax from the Federal Tax Administration. In the light of these disadvantages, Swiss based groups tend to carry out their collective debt financing activities outside of Switzerland.

Features of the proposed reform

The proposed partial reform of the Federal Withholding Tax Act with regard to interest withholding tax is aimed at mitigating some of the above-described issues. On 3 April 2020, the Swiss Federal Council published a first reform draft with an explanatory report for public comments. The key element of the draft bill was a removal of the “debtor system” (as far as withholding tax on bond interest is concerned) in favor of a “paying agent” system. Under the paying agent system, (Swiss) debtors of collective debt financing instruments would make their interest payments gross, without deduction of any withholding tax. The paying agent (usually a bank in Switzerland) would then have to draw a distinction between different categories of investors/interest beneficiaries:

Payments/credits of interest to Swiss resident individuals would be charged with a 35% backup withholding tax, which the paying agent would deduct and submit to the Federal Tax Administration.
Payments/credits to any other types of investors, including Swiss corporate investors and any foreign resident investors would be exempt from the backup withholding tax.
The backup withholding tax liability would be extended to interest payments on collective debt instruments (bonds etc.) issued by non-Swiss issuers, where the interest beneficiary is a Swiss resident individual. Furthermore, the backup withholding tax on interest would be extended to any indirect investments in taxable bond instruments made by Swiss resident individuals (typically via investment funds).

Further elements of the draft reform bill inter alia included:

The backup withholding obligation of Swiss paying agents would also be applicable to interest components in structured financial products;
A statutory regulation of federal withholding tax on compensation and “replication” payments for taxable dividends and interest (so-called “manufactured” payments) would be introduced (at present, such manufactured payments are only covered by administrative regulations, which in the author’s opinion are lacking statutory basis). Swiss paying agents’ obligation to apply 35% backup withholding tax to compensation payments for Swiss dividends embedded in the return of derivative financial instruments and structured products, as well as in the context of securities lending and repo arrangements would not only apply to payments made to Swiss resident individuals, but rather to dividend compensations made to all types of Swiss and foreign resident beneficiaries;
In order to determine the interest components embedded in the returns of Swiss and foreign collective investment schemes (funds), additional detailed reporting requirements would be introduced so as to enable the Swiss paying agent to calculate and deduct proper backup withholding tax in respect of such fund units owned by Swiss resident individuals. As regards foreign investment fund products, a catch-all provision would be introduced to capture the entire return (including underlying Swiss and foreign source dividends and interest, as well as capital gains) as a basis for the backup withholding obligation, unless the foreign fund provides proper reporting to the Swiss paying agent with a breakdown of underlying taxable interest and exempt dividends and gains, respectively;
Finally, the draft bill provided for an exemption of the trading Swiss bonds from the federal securities transfer stamp duty, which under current law is levied from “Swiss securities dealers” at a tax rate of (up to) 0.15% of the consideration paid for trades in the secondary market.

Results of the consultation process and latest developments of the proposed reform

The public consultation process has shown that, while most commentators have welcomed the general improvements achieved by the proposed change to a paying agent system in conjunction with the limitation of the exposure to (backup) withholding taxes on interest to Swiss resident individuals, especially the banking and investment fund industries have warned against the increased complexities arising from the extension of the backup withholding obligations to non-Swiss debt instruments, and in particular from the extension of such obligations to indirect investments in such (Swiss and foreign) debt instruments.

Considering the overall results of the consultation process, the Swiss Federal Council announced on 11 September 2020 that it would principally go ahead with the withholding tax reform; however, the initially envisaged system of backup withholding on interest arising on Swiss and foreign collective debt instruments (bonds etc.) via paying agents in Switzerland will be dropped in favor of a full exemption of all interest payments arising on Swiss and foreign issued collective debt instruments to any type of investors. Only interest paid to Swiss resident individuals on Swiss bank deposits would remain subject to federal withholding tax according to the latest announcement by the Federal Council.

The dispatch to the Federal Parliament with the government’s final reform proposal is expected to be issued in the course of the second quarter of 2021. It is expected that the final legislative proposal will still include the abolition of the securities transfer stamp duties on Swiss bonds and similar instruments. To what extent other elements of the initial reform proposal (such as the statutory regulation of the withholding tax treatment of dividend compensations and the like) will be addressed by the final legislative proposal remains to be seen.

Peter Reinarz

Reinarz

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Covid-19 crisis – Succession planning and planning for incapacity

The second wave of Covid-19 in this fall 2020 has shown that the virus is not yet under control and that it may still take us a long time to go back to a new normality.

The pandemic has given us time to reflect, prioritize and take up projects that were on stand-by because of our busy lives. Many clients have had time to dedicate to solving family matters and have approached us to set up or review their estate planning and to establish mechanisms to protect them and their families in case of incapacity.

Broadly speaking, this includes last wills, durable powers of attorney, patient decrees or living wills and any practical or legal measures which can be set up to organise one’s affairs in the event of death or durable incapacity. Different legal tools can be used to plan and to reduce the number of difficult decisions a family has to take when facing a dramatic, unexpected event, such as the death or the sudden accident of one of its beloved ones.

I. Is your last will up-to-date?

A last will is a living document. As your life and business situation changes, your estate, assets, family relations etc. also change, and your last wishes may need to reflect these changes. You should therefore regularly review your last will to ensure that it corresponds to your wishes and your particular situation. Especially, you should make sure that it is adapted to any new circumstances and to the applicable legal provisions, both from a civil and a tax point of view.

In Switzerland, a testator may write a last will by hand (holographic form) or make it before a notary public (public deed form). In case of imminent risk of death, it is also possible to make an oral will by declaring the wishes in front of two witnesses and instructing them to draw up a testament in the form of a public will. This document is, however, limited in time and if the testator survives, it loses effect.

Pursuant to Swiss International Private Law, Swiss law will apply to the estate if the deceased’s last domicile was in Switzerland. That being said, any foreigner living in our jurisdiction may choose the application of the law of his/her nationality by making a professio juris (choice of law). Swiss nationals living abroad may equally chose the application of the law of their last domicile.

It should be noted that Swiss law knows forced heirship rules that e.g. protect the surviving spouse and the descendants, or the parents in the absence of spouse and descendants.

Also, in case you are married, attention must be paid to the applicable matrimonial regime as it has consequences on any succession. Upon the death of one spouse, the matrimonial regime is first dissolved to establish whether matrimonial assets fall into the estate of the deceased spouse. Then, the estate of the deceased is established and liquidated. Consequently, the amount entering into the estate will depend on the matrimonial regime dissolution.

In your estate planning, the choice of the matrimonial regime can have a substantial impact on the assets left to the surviving spouse. In Switzerland, pre-nuptial agreements are common to govern this aspect. Post-nuptial agreements are also possible with retroactive effect under certain conditions.

II. Is a durable power of attorney for the case of your incapacity in place?

In case you have a temporary or durable incapacity, a person or an authority will have to intervene to conduct your business and decide on your personal matters, as you will not be able to do it.

Swiss law provides that the spouse or the registered partner has to protect the interests and assist the other spouse/partner. The first can hence settle the incapacitated person’s day-to-day affairs but cannot make any key decisions. For instance, to buy or sell real estate for the incapable, an application to the Child and Adult Protection Authority is necessary.

Single persons or those without close relatives nearby capable of taking care of their affairs will have a curator appointed by the Child and Adult Protection Authority.

In order to control who should take care of your matters in case of incapacity, you have the possibility to appoint a private representative in a durable power of attorney. You will so be able to avoid the intrusion of the state, an unknown third party, or an unwanted person. This solution also prevents the nomination of an official curator who does not know you, your family, the peculiarities of your situation, and your wishes.

A representative nominated by you and of your trust will receive clear indications on how to manage your assets and personal matters and act in your best interests. Such a solution is all the more recommended in complicated family matters or for persons without close relatives.

As regards to the form, according to Swiss law, advance care directives must be made in the same form as a last will (either holographic or before a notary public).

III. Is your patient decree or living will available?

Most of us are afraid of losing our reasoning powers or of being unable to communicate our wishes relating to care and medical treatments but often we avoid finding a solution in advance, as the matter is not easy to address. However, family members who are confronted with a relative who is no longer able to decide on these matters are subject to enormous pressure and stress because they wish to make the right decisions, and this may be difficult or subject to different opinions.

The decision may include deciding on whether life sustaining measures should be continued. These questions are not often discussed among family members, as they relate to difficult and intimate topics. However, it is recommended and necessary to do it in order to take away this burden from family members.

In Switzerland, you can decide in advance which care and therapeutic measures you wish to receive if you are not able to make decisions by yourself. These so-called “patient decrees” can be more or less detailed and can form part of a durable power of attorney or be made separately.

You should provide your patient decree to your family doctor or to some family members to make sure they are informed. Equally, you can download it on an online platform or add a special note regarding the decree on your Swiss insurance card. In any case, several of your trustworthy relatives should know where the document can be found.

Drafting a patient decree will save your family and/or relatives from having to make painful decisions. It will also avoid having your relatives fighting over what they believe would be your true medical instructions and wishes.

IV. Can somebody of your trust access your bank account to ensure liquidity?

In case of an unexpected illness, sudden incapacity and/or accident, it is important that someone of your trust is able to access your accounts to ensure not only your day-to-day payments but also the settlement of extraordinary bills that may be related to the situation.

A banking power of attorney appointing a trusted person (the proxy) to act on your behalf and in your best interests should hence be signed. In order to reduce chances of abuses, you can appoint two persons with joint signatory powers.

This solutions is easy to put in place as the powers granted to the proxy can be cancelled at any time by sending a written order to the bank, provided however that you are mentally capable.

V. Your digital estate: is the information about your accounts/digital assets/codes etc. save and accessible?

Nowadays, most of us use Facebook, Instagram, tweeter, LinkedIn. At the same time, we do not realise the digital print we leave on the internet. We may also have cryptocurrency accounts that are only accessible with a code.

As we usually do not share our passwords/codes and we are advised not to write them down, turning off our social media accounts or accessing our cryptocurrency accounts can create a problem after one’s death.

You shall hence keep an overview of your online activities and delete any unused user accounts. At the same time, you should to make a list of all your online accounts, including their passwords and keep them in a safe place; and do not forget to inform a trustworthy person or your executor of the location of this list.

Equally, you could draw up this information in a side letter attached to your last will and indicate what you wish to be done by your heirs in this context.

Finally, automatic online payments and transfers should be listed in order to be promptly cancelled.

VI. Have you established an inventory of your assets?

Tax returns often serve the purpose of establishing an inventory of the deceased’s assets. However, in this document, for couples married under the ordinary regime, no distinction is made between personal and acquired properties. And this differentiation is of outmost importance as it can impact in a significant way the size of the estate.

This is why spouses, before or during marriage, often make private inventories of their assets, indicating which is acquired property and which individual, either in the form of a private agreement or before a notary public.

In the event of one of the spouses’ death, the inventory will facilitate the liquidation of both the matrimonial regime and the estate. It will also help avoiding or weakening your heirs disputing the qualification of some assets.

VII. Have you dealt with issues that you do not wish your family/heirs to know?

Every family has its secrets and surprises; every individual has its private matters. To protect some of your relatives or to avoid any legal dispute among your heirs, we recommend to plan ahead and implement solutions.

Creative answers can be found, for instance, to favour some heirs, to bequest non-family members (within the limits of the applicable laws).

Swiss forfait tax – What you need to know

1.What is the forfait about?

Switzerland has for decades had the so-called forfait taxation regime, essentially allowing foreign nationals relocating to Switzerland to pay tax on their worldwide expenditure.

The forfait regime is often mentioned alongside the UK and Irish non dom-regimes and, more recently, the Italian regime available to new residents. By comparison, the forfait regime, coupled with other advantages of the Swiss tax system, is more beneficial on many counts (e.g. legal certainty and/or inheritance tax). In particular as far as professional activity is concerned, however, the regimes on the islands may be perceived as carrying the day.

2. Can I apply?

The forfait regime is available to foreign nationals taking up tax residence in Switzerland for the first time or after an absence of at least 10 years.

Although the regime was originally aimed at wealthy foreigners coming to spend the autumn of their life in Switzerland there has never been a minimum age (nor maximum, for that matter).

3. Can I work?

To be eligible for the forfait regime you may not exercise any paid work in Switzerland, neither as employee nor in a self-employed capacity.

Gainful activity abroad is permissible, however.

4. I would be entitled, then. But my spouse is Swiss. Can I still get the forfait?

No, you can’t. Both spouses must fulfil all criteria.

5. I’m a dual national. Am I eligible?

No, dual citizens with Swiss nationality do not qualify either (and never did).

6. How do I calculate my tax?

Forfait taxation is essentially based on (i) the taxpayer’s worldwide living expenses that serve as tax base, (ii) the rent multiple (7 x annual rent for accommodation) or (iii) the so-called control calculation to which ordinary tax rates are then applied.

Living expenses include in particular worldwide costs for accommodation, general living, cars, aircrafts and yachts, housekeeping and personnel in respect of all individuals (family members etc.) financially supported by the taxpayer.

Put simply, the tax base corresponds to what it takes to keep the family going, whereby cantons have substantial leeway in determining the practical aspects. The minimum base for Federal tax purposes is CHF 400’000.

And there is another factor to take into account, the so-called control calculation. Tax payable under forfait must be at least equal to (income and wealth) tax payable at ordinary rates on (i) Swiss real estate and related income, (ii) movable assets located in Switzerland and related income, (iii) Swiss securities and related income, (iv) Swiss intellectual property and related income, (v) Swiss source pensions and (vi) income for which treaty benefits are claimed (for treaty benefits see question 8).

Swiss securities comprise Swiss shares and dividends or interest from Swiss sources. Whereas a portfolio of non-Swiss shares held and managed by a Swiss bank should not give rise to any issues, interest, if any, on a Swiss cash account may.

Treaty protected income will typically include non-Swiss dividends or royalties subject to a withholding tax in the source country. Such income must be included in the control calculation if a reduction of source tax is claimed under an applicable treaty (question 8).

In summary, the tax base is usually the higher of (a) CHF 400,000, (b) worldwide living expenses, (c) the rent multiple or (d) the sum of the control calculation.

7. As a forfait tax payer, do I get the benefit of double tax agreements (DTA)?

Any income for which treaty protection is claimed will need to be included in the so-called control calculation.

Some DTA will not accept a forfait tax payer as tax resident. Others contain express provisions in respect of forfait tax payers, namely those with Germany, Belgium, Norway, Italy, Austria, Canada the US and France. Typically, these DTA will require any treaty protected income to be included in the tax base. That said, in particular with France there is some uncertainty in practice as to the treatment of French source income.

8. Social security? – no one ever told me

Forfait tax payers under the age of 65 are subject to social security contributions. Depending in particular on an individual’s wealth the contribution may amount up to CHF 24’000 plus approx. 5% administrative costs per person.

9. Procedure – how do I obtain my forfait and what do I have to disclose?

Obtaining the forfait is usually less of an issue than immigration, especially for non-EU nationals.

Once the chosen place of residence has been identified one would typically approach the local cantonal tax authorities. They are competent to grant a forfait ruling. Immigration authorities will have to be consulted with, too, as they issue the residence permit.

Information to be provided includes an individual’s worldwide living expenses and an approximation of his or her wealth. The level of detail requested by the authorities varies greatly between cantons.

Can I Create A Trust Under Swiss Law?

Switzerland does not have a law relating to trusts. However, it ratified the Hague Convention regarding trusts and agreed therefore to recognise trusts that are created in accordance to the convention.

Switzerland, as a civil law country, does not have a law relating to trusts. The creation of a trust under Swiss law is, therefore, not possible. It is noteworthy, however, that in 2018 the Swiss parliament mandated the Federal Council to create the legal basis for a Swiss trust and since then an expert group has been drawing up corresponding proposals for regulations.

Nevertheless, at the time of writing it is too early to say whether Switzerland will implement a law relating to trusts in the foreseeable future and how this law might look like. Thus, in the following it is described what Swiss alternative to the trust is available to a decendent under existing law and how he or she might arrange for the establishment of a trust to be governed by the law of another jurisdiction.

The Swiss Usufruct

The so-called usufruct, a limited right in rem that can be created for a maximum term of 100 years, is the closest that Swiss law comes to the concept of dual property rights as recognised in common law jurisdictions. The beneficiary of the usufruct is entitled to possess, enjoy and use the property during his or her lifetime. The right of disposition, however, is restricted in so far as it would affect the rights of the owner of the bare property.

Recognition of Foreign Trusts

Switzerland has ratified and put into force per 1 July 2007 the Hague Convention on the Law Applicable to Trusts and on their Recognition of 1 July 1985. Even though Swiss law still does not provide for trusts to be established under Swiss law, the Hague Convention permits to create a trust choosing a law—other than Swiss law—which recognises the trust. A trust created in this way is – as consequence of the ratification of the Hague Convention – also recognised in Switzerland.

As a second consequence of the ratification of the Hague Convention and in order to codify the concept of property separation between trust and trustee property in Swiss law, Switzerland made the corresponding amendments to the Swiss Debt Collection and Bankruptcy Act. Thus, trust property will be protected from personal creditors of the trustee.

However, Swiss succession law and especially the provisions protecting the compulsory portion of statutory heirs may conflict with the settlement of assets into a trust. The heir whose rights to a compulsory portion are infringed can file an action in court for reduction.

The Foundation of a Trust in a Last Will or Contract of Succession

Even though trusts that are created in accordance with the Hague Convention are recognized in Switzerland, it is controversial whether a testator can provide for the constitution of a trust in a last will or in a contract of succession. The common advice is to establish a trust during lifetime with a nominal trust fund and to bequest additional funding by testamentary dispositions.

Conclusion

Switzerland does not have a law relating to trusts but recognizes trusts that are created in accordance to the Hague Convention on the Law Applicable to Trusts and on their Recognition. Nevertheless, due to the controversy around testators providing for the constitution of a trust in a last will or in a contract of succession and the additional possibilities the Swiss usufruct offers, it is advisable to address the subject in good time and seek the advice of a professional.

Dr. Edgar Paltzer works as an attorney-at-law in Switzerland and counts estate planning among his specialist areas of expertise.

Edgar Paltzer

Paltzer

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Switzerland – The Home of the Family Office

An increasing amount of high earning business owners and families who have sold their businesses are turning to family wealth management offices to support them, instead of standard wealth management services.

When families weigh up the question of whether to set up their own single-family office (SFO) or use the services of an existing multi-family office (MFO), they often overlook the matter of the jurisdiction in which that family office should be. This is actually an essential element that deserves serious thought.

There are quite a few questions that need answering before deciding on the jurisdiction for a family office:

In which jurisdiction does the family need support?
What are the family’s goals?
What should the legal form be?
Which of the family’s (corporate) entities need to be managed, and by whom?
Which assets need to be preserved and protected?

All these considerations apply when establishing an SFO or choosing an MFO. You also need to select a country that is politically, economically and financially stable, provides easy access to financial service providers, and offers a sound infrastructure, and where staff is highly qualified and experienced.

A common mistake families make is to choose or create a family office in the same jurisdiction as where they live. Although this can be very practical, for example from a communication point of view, this is often not the best choice when examined from a wealth-preservation perspective. Because one of the primary roles of a family office is to safeguard assets, and to be able to assist the family under all kinds of circumstances.

A family office for wealth preservation

This means that the family office needs to be able to protect the family’s assets and interests against geographical, political, religious, personal and economic risks, while remaining fully operational under any circumstances. Therefore, it is only logical that the family office should be located in a secure jurisdiction. Because unstable and unsafe jurisdictions outnumber the stable and safe ones by far, the majority of family offices will need to be located outside the home jurisdiction of the families they serve. This does not necessarily mean that the entire staff or all services must be located in a foreign jurisdiction; roles such as local secretarial support, lifestyle management services and local real estate management can be (partially) based in the family’s original jurisdiction.

In addition to providing stability and security, the jurisdiction of the family office must also:

Be easily reachable
Be tax-efficient
Allow the office to manage the family’s entities efficiently (holding companies, trusts, foundations, etc.)

Finally, most family offices prefer to be located in a jurisdiction known for having a reputable financial centre. It considerably simplifies the activities of a family office when it is in the vicinity of stable private banks and financial specialists with solid reputations and lots of experience.

All the essential requirements highlighted above ultimately limit the number of best possible jurisdictions to only a few and that is exactly why you find so many SFOs and MFOs in Switzerland.

Switzerland, the traditional safe haven

Switzerland is politically, economically and financially stable. It has been a neutral country since 1815 and has not been involved in any war since 1848. As Switzerland’s political regime is a so-called direct democracy, it is one of the few countries in the world where the population can have direct influence on all (proposed) federal and local legislation.

Switzerland’s economy is extremely stable. Thanks to broad diversification and strong domestic demand the Swiss economy has been growing steadily and has not been particularly weighed down by the worldwide economic and financial crisis. Thanks to its constitutional debt brake, the Swiss government has been able to produce a budget surplus every single year since the start of the financial crisis in 2008 and as a result Switzerland nowadays has one of the world’s lowest government debt ratios and is one of the few countries left with a AAA rating.

Swiss financial infrastructure

As mentioned, close proximity to solid private banks is key, as one of the primary tasks of a family office is to manage your wealth. Swiss banks have been world leaders in the wealth management industry for a very long time and some of the best-capitalised banks in the world are located in Switzerland. A Swiss private bank stands apart from local private banks thanks to its expertise and experience in investments and investment classes from around the world. A Swiss private bank is not only knowledgeable about the securities traded on your local stock exchange, it also advises you on the securities traded on all other international stock exchanges (contrary to, for example, US-based banks).

Switzerland also has a very attractive corporate income tax system. Rates are relatively low and Switzerland has signed agreements for the avoidance of double taxation with many countries. On top of that Switzerland is also a signatory to the Hague Trusts Convention thereby recognising the existence and validity of trusts. All this is backed up by Switzerland’s reputable, trustworthy and solid legal system and its topflight specialists such as tax advisors, law firms, wealth planning specialists, notaries, audit firms, etc.

Moreover, the infrastructure in Switzerland is world-class. Geneva and Zurich have highly developed airports with flight connections worldwide, many direct, and both city centres can be reached within twenty minutes from their respective airports.

Family office staff

Last but not least, highly experienced, motivated, reliable and educated staff with financial experience can be recruited or found in Switzerland. But even more importantly, when you intend to establish a SFO, such staff currently located elsewhere in the world can also be persuaded to relocate to Switzerland as it is considered one of the best countries in the world to live in, due to its very high living standards.

One of the best locations for a family office

All these elements make Switzerland one of the best locations to use a multi-family office or to establish your own single one. Because a family office is not only there to manage your wealth, but also to safeguard and protect it when your home country turns out to be less stable than you had hoped or expected.

Jan van Bueren is Senior Advisor EMEA and Switserland at Union Bancaire Privée.

Jan van Bueren

UBS Group

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