One of the welcome measures of the Swiss corporate law reform is the so-called 'capital band', which provides companies with more flexibility regarding changes to their capital structure. Since Swiss-listed companies could have used the capital band in an abusive manner to generate tax advantages for certain types of shareholder, the respective tax legislation had to be adapted. All Swiss companies which are considering introducing a capital band should carefully plan ahead.
The abolition of Swiss withholding tax on bonds and other collective debt financings is a welcome measure that allows Switzerland to significantly strengthen its position as an international finance and treasury centre. All types of financing and refinancing activity in Switzerland will be facilitated as adverse withholding tax consequences can be prevented. This fundamental change of the Swiss withholding tax regime is expected to come into force on 1 January 2022 at the earliest.
Under the current tax framework, the non-uniform cantonal tax practices on the capital gains treatment and valuation of employee shares in start-ups and other non-listed companies lead to different tax consequences for employees depending on their place of residence. The Swiss Federal Tax Administration recently created a favourable framework for start-ups and enhanced the legal certainty and predictability of the tax consequences with regard to non-listed employee shares.
The ordinance concerning the tax credit provided for in applicable Swiss double tax treaties has been significantly amended with effect from 1 January 2020. The new ordinance provides welcome amendments, including an extension of the scope of application to Swiss permanent establishments of foreign companies. In contrast, some of the new features introduced in the ordinance may have a negative effect on taxpayers.
The EU Directive on Administrative Cooperation need not be incorporated into Swiss law, but its impact on groups based in Switzerland may be significant. Considering the directive's broad scope, it is crucial that Swiss-based groups identify qualifying intercompany transactions at an early stage and ensure that they comply with the applicable subsidiary reporting obligations in cases with no involvement of EU intermediaries.
The Federal Council recently approved the cloud strategy for the federal administration which, among other things, provides for the further use of public cloud services as a strategic extension of existing IT-sourcing options for the federal administration. On the same day, it published the latest report on the Swiss Cloud – a related initiative to examine whether Switzerland should strive for its own cloud and data infrastructure with regard to data sovereignty and reduced dependency on international cloud providers.
The Film Act is under revision, with major implications for online film providers. Under the revised act, companies that show films in Switzerland in their programmes or as 'electronic services on demand or by subscription' (ESDS) must use at least 1% of their gross revenues to invest in independent Swiss film productions or pay a compensation fee. In addition, companies offering films in Switzerland as ESDS must allocate a minimum of 30% of their platform capacity to European films.
The Federal Council recently tasked the Department of Finance with drafting a bill which will introduce a cyberattack notification obligation for operators of critical infrastructure. The draft will appoint a central reporting office and provide uniform criteria for all sectors in order to clarify how the reporting procedure would work. This step forward represents a key point of implementation of the national strategy for the protection of Switzerland against cyber risks.
Parliament recently revised the federal telecoms legislation – in particular, the Federal Telecommunications Act and its various implementing ordinances. These revised regulations entered into force on 1 January 2021. The revision of the telecoms legislation brings about several fundamental changes that affect consumers as well as telecoms service providers and telecoms operators.
The Federal Council recently submitted to Parliament the draft and corresponding dispatch of the new Federal Act on the Protection of Minors in respect of Films and Video Games. Age labelling and age controls for films and video games will be uniformly stipulated throughout Switzerland and made mandatory for films and video games available at public events, through on-demand services and on physical storage media such as tapes, disks or sticks.