Frontier workers

from Wikipedia, the free encyclopedia

As commuters are called persons who have a state border away commute to work in the field across the border to go to school or to make similar. Most of these people have their residence in the border area.

The prerequisites are interstate freedom of movement and the development of traffic in the border areas of the states concerned. The cross-border commuter system emerged in Europe as a result of European unification . In contrast, the phenomenon of cross-border commuters in the Berlin area from 1948 to 1961 came about through the establishment and not the dismantling of a border within a metropolitan industrial region.

In tax law, a distinction is made in Germany between the terms cross-border commuters and cross- border commuters . In this context, cross-border commuters live in Germany and are subject to income tax, but are employed abroad and go to their domestic place of residence daily or at least once a week. Cross-border commuters, on the other hand, are people who live abroad and who by far earn and pay tax on their income in Germany.

Legal situation in the European Union

According to Union law, the employee is a "frontier worker" who is employed in the territory of a Member State (country of employment) and lives in the territory of another Member State (country of residence - political criterion) to which he usually returns daily, but at least once a week (temporal Criteria). However, this definition, which requires the daily or weekly return to the place of residence in addition to the journey from home to work across a border, only applies to the social protection of the workers concerned in the European Union.

Since there is no jurisdiction under Union law, only the double taxation agreements are decisive for the tax treatment of cross-border commuters . These can include, for example, the taxation of cross-border commuters in the country of residence (e.g. according to the Franco-Belgian double taxation agreement), taxation in the source country (e.g. according to the agreement between the Netherlands and Germany) or both forms of taxation at the same time (agreement between Switzerland and Germany).

While the OECD Model Tax Convention generally provides for taxation in the source country, the taxation right mostly lies with the country of residence and not with the source country if the taxpayer lives in the border zone of one country and works in the border zone of another country, provided that the person concerned regularly returns to his place of residence. If the place of residence and / or the place of work is outside the border zone, however, the earned income is at the source, i. H. in the country of employment, taxed.

In the latter case, the employer of the cross-border worker on behalf of the country of employment withholds the amount of tax payable in accordance with the tax regulations of that country ( withholding tax deduction ). Does the household of the frontier worker in the State of residence on other sources of income , especially in employment of the spouse who may progression clause apply: where the State of residence reserves the right to domestic income of the person concerned after the tax rate to tax, of the total income, d. H. including transnational income.

Cross-border commuters in the German income tax law

Determination of tax liability

The figure illustrates the system of determining tax liability under the Income Tax Act.

The system of determining tax liability under the Income Tax Act

In the EStG, the determination of tax liability is strongly linked to the domicile or habitual residence of the taxpayer. If a taxpayer (natural person) has his place of residence i. S. d. § 8 Tax Code (AO) or his habitual residence i. S. d. § 9 AO in Germany , it is considered to be subject to unlimited income tax in Germany according to § 1 Paragraph 1 EStG d. H. his total income is taxed domestically. Here, however, the personal and the can Marital status of the taxpayer will be considered. Ie the taxpayer can his special expenses i. S. d. § 10 EStG, child allowance i. S. d. § 32 EStG, extraordinary burdens i. S. d. Assert Section 33 EStG for tax purposes. In addition, for the taxation of married taxpayers who are assessed together, the spouse splitting procedure according to Section 32a (5) EStG must be applied. Taxpayers who are neither domiciled nor habitually resident in Germany and who have income i. S. d. Paragraph 49 of the Income Tax Act (EStG) is considered to be subject to limited tax liability under Paragraph 1 (4). This means that such taxpayers are only liable for tax in Germany on their domestic income. The personal and the marital status of taxpayers is not taken into account in taxation. Among other types of income, Section 49 also mentions income from non-self-employed work (Section 49 (1) No. 4). This means that all employees who live abroad and work in non-self-employed professional activities in Germany would have to be treated as subject to limited taxation. Such workers would also include cross-border commuters who live in neighboring countries, who work daily or regularly in Germany and who return to their place of residence daily or regularly. It is often the case that cross-border commuters earn their entire income in Germany. If one takes into account the fact that such employees do not receive tax benefits such as consideration of special expenses i. S. d. §10 EStG, the child allowance i. S. d. § 32 EStG, extraordinary burdens i. S. d. 33 EStG and the application of spouse splitting , this regulation appears extremely unfair. The German legislator has dealt with this problem and in the mid-1990s included the provisions on fictitious tax liability in Section 1 (3) and Section 1a EStG in the German Income Tax Act. The starting point, however, was the judgment of the European Court of Justice of February 14, 1995, which considered the then applicable regulations for determining the tax liability of cross-border commuters from EU member states to be incompatible with EU law.

Historical background to the fictitious unrestricted tax liability

The main proceedings represent a legal dispute between the Belgian national Roland Schumacker and the Cologne-Altstadt tax office before the Cologne tax court:

Roland Schumacker always lived in Belgium with his wife and their children . After initially working in that State, he was employed in Germany from May 15, 1988 to December 31, 1989, and he continued to live in Belgium. His wife, who was unemployed, received unemployment benefits in Belgium only during 1988. Since 1989, the plaintiff's salary has been the family's only income. Since Schumacker was neither domiciled nor habitually resident in Germany, he was treated as subject to limited taxation in accordance with Section 1 (4) EStG. He was acc. To the tax office Cologne-Altstadt. Section 38b (1) b classifies tax class I. His wage tax was therefore calculated and deducted without applying the spouse splitting tariff. On March 6, 1989, Roland Schumacker applied to the Cologne-Altstadt tax office to calculate the amount of his wage tax in accordance with § 163 of the German tax code in an equitable way, taking into account the splitting of spouses according to § 26 EStG (tax class III) and demanded the amount of excess paid Wage tax back. After the tax office had rejected his application on June 22, 1989, the plaintiff brought an action at the tax court in Cologne. This upheld the lawsuit for 1988 and 1989 and sentenced the tax office to issue an equitable decision under Section 163 of the Tax Code. The tax office then appealed to the Federal Fiscal Court against the judgment of the Cologne Finance Court. Thereupon the Federal Fiscal Court suspended the proceedings and on April 14, 1993 submitted an inquiry to the European Court of Justice to decide by way of a preliminary ruling whether Article 48 of the EEC Treaty (the Treaty establishing the European Community) on the free movement of workers had an impact on the case may have to be issued and to what extent this case is to be decided within the framework of European Community law.

Thereupon the European Court of Justice ruled that nationals of an EU member state who are exercising their right to freedom of movement in accordance with Art. 48 of the EEC Treaty exercising a non-self-employed professional activity in another EU member state, in the collection of direct taxes ( wage tax ) may not be treated worse than the citizens of this EU member state who have a comparable non-self-employed activity in this Exercise state. If a citizen of an EU member state earns his income wholly or almost exclusively from non-self-employed activity in another EU member state, his personal situation and marital status must be taken into account when taxing his income, as well as procedures such as annual wage tax adjustment and income tax assessment can be applied. Thus, the then existing provisions of the EStG were restricted by European law. Thus, the provisions on fictitious unrestricted tax liability were included in the German tax law. However, this does not only refer to non-self-employed professional activity in Germany (cross-border commuters), but also to other types of income listed in Section 49 EStG, provided that the requirements of Section 1 (3) or Section 1a EStG are met.

Fictitious unlimited tax liability for cross-border commuters

According to § 1 Abs. 3 EStG

The fictitious unrestricted tax liability according to § 1 para. 3 also applies to cross-border commuters who are not self-employed in Germany within the meaning of S. d.§ 49 No. 4 exercise and raise their income wholly or almost exclusively in Germany. The fictitious unrestricted income tax liability exists if the following requirements are met: 1. Application 2. Income in the calendar year a) is subject to at least 90% German income tax or b) the income that is not subject to German income tax does not exceed the basic tax allowance according to § 32a para . 1 sentence 2 No. 1 (in the assessment period 2019 9,168 euros) 3. The amount of income that is not subject to German income tax is proven by a certificate from the foreign tax authority. When calculating the income tax limit, according to § 1 para. 3 sentence 4, the income that are not taxed abroad. The nationality of the taxpayer is irrelevant.

Example 1:

The married couple Eva and Uwe Ehren are Swiss citizens and live in Basel (Switzerland). The wife works as an employed tax advisor in Freiburg and drives her car to her place of work every day (cross-border commuters). In the 2013 assessment period, she received an annual salary of 30,000 euros from her employer in Germany. The husband took care of the household and gave a weekly language course "English for Beginners" in Venlo. His fee in the 2013 assessment period totaled 2,000 euros. A certificate from the Swiss tax authorities is available. The spouses can acc. Section 1 (3) EStG apply for unlimited tax liability, as you have no domicile or habitual abode in Germany, receive domestic income and 93% of the income is subject to German income tax during the assessment period. The fact that Switzerland does not belong to the EU is irrelevant in this case, as Section 1 (3) applies regardless of the nationality of the taxpayer.

The advantages that result from the fictitious unrestricted tax liability according to § 1 Abs. 3 EStG are:

  1. The consideration of the special expenses i. S. d. § 10 EStG
  2. The consideration of the extraordinary loads i. S. d.§ 33 EStG
  3. The consideration of the child allowances i. S. d. Section 32 EStG

According to § 1a EStG

The provisions of § 1a EStG only apply to citizens of the European Union and the EEA countries (Iceland, Norway, Liechtenstein) who are also resident in these countries and in Germany either according to § 1 Paragraph 1, Paragraph 2 or Section 1 (3) EStG are subject to unlimited taxation.

Example 2:

Maximilian Bauer is married and lives with his wife in Salzburg . He is an Austrian citizen, his wife is a citizen of China . Maximilian Bauer works in Augsburg and takes the train to his place of work every day. In the assessment period 2013 he received an annual salary of 100,000 from his employer. His wife is a kindergarten teacher in Salzburg and works part-time. She received 10,000 in the 2013 assessment period. Section 1 (3) apply for unrestricted tax liability as you have no domicile or habitual abode in Germany, receive domestic income and 90% of the income is subject to German income tax during the assessment period. You can acc. § 1a EStG can also be assessed together because the husband is a citizen of an EU member state and both live in an EU member state.

The advantages that result from the fictitious unrestricted tax liability according to § 1a EStG are:

  1. The consideration of certain special expenses z. B. Maintenance payments to divorced or separated spouses, pension benefits, compensation payments i. S. d. Section 10 Paragraph 1 No. 1–1b
  2. Application of the spouse splitting tariff i. S. d. Section 32a (5) i. V. m. Section 26 of the Income Tax Act (at least the spouse who is a citizen of an EU or EEA country who is treated as subject to unlimited taxation according to Section 1 (3))

Statistical data on cross-border commuters in Germany

The last available statistical study on the number of cross-border commuters in Germany was carried out in 2009 by the Institute for Employment Research. Scientists have examined how the situation in terms of the number, origin, age and gender of cross-border commuters in Germany developed between 2000 and 2005. In 2005, a total of around 72,500 people were employed in Germany whose place of residence was in a neighboring EU country. Overall, this makes up only 0.28% of all employees subject to social security contributions in Germany.

origin

The figure shows the percentage distribution of cross-border commuters in relation to their country of origin in 2000 and 2005 in comparison.

Comparison of the distribution of cross-border commuters in relation to their country of origin in 2000 and 2005

Most of the cross-border commuters came from France . It is noticeable that cross-border commuters from the direct neighbors of France, Austria and the Netherlands make up over 50% of the total number of cross-border commuters. The proportion of cross-border commuters from Eastern Europe, Poland and the Czech Republic was very low in the period under review. However, a clear increase was observed in 2005 compared to 2000.

Gender and age

The proportion of women among cross-border commuters in 2005 was 37.3%. Luxembourg and Belgium had the highest proportions of women with 50.0 and 46.9% respectively. In contrast, France had the lowest number of female cross-border commuters at around 35.0 percent. In the period from 2000 to 2005, the number of female cross-border commuters increased disproportionately and more than doubled with a growth rate of 109.7%. At 86.4%, however, the increase among men fell significantly less. Regardless of gender, it can be seen that the proportion of older cross-border commuters is the greatest and that it is constantly increasing (for both women and men, the proportion of over-50s rose by over 4 percentage points). In line with this development, the average age of all cross-border commuters also increased slightly. On average, the cross-border commuters were around 41 years older than they were in 2000.

Qualification and education

In 2005, on average, almost half (49.6%) of all cross-border commuters had completed training, one fifth (19.8%) had no training and almost one tenth (9.5%) had a university of applied sciences. Have a university degree. If one looks at the qualification structures differentiated according to the countries of origin, a relatively mixed picture emerges. While at least half of the cross-border commuters from France, Austria and the Benelux countries had completed vocational training in 2005, the proportion of cross-border commuters from Denmark, Poland and the Czech Republic in this group is in some cases significantly lower.

Places of work for cross-border commuters

It turns out that almost all cross-border commuters (98.8%) had their job in a West German federal state and that this was mostly chosen near the border. Around 90% of all cross-border commuters were employed in a federal state directly adjacent to their country of origin, around three quarters in a directly adjacent German district .

Cross-border commuters to Liechtenstein

Around two thirds of jobs in Liechtenstein are taken by foreigners (as of 2011). The majority - around 53% of all employees working in Liechtenstein - commute daily from abroad to their place of work and are therefore cross-border commuters.

A revised double taxation agreement between Switzerland and the Principality of Liechtenstein came into force on January 1, 2017. Accordingly - with the exception of remuneration from the public service - income from employment of cross-border commuters is only taxed in the contracting state in which they are resident.

Cross-border commuters to Luxembourg

The Greater Region forms a common labor market, which is characterized in particular by a high proportion of cross-border commuters on the Luxembourg labor market . In addition, the very tight real estate market in Luxembourg is causing an increasing number of people who have a job in Luxembourg to move to neighboring countries.

Cross-border commuters from Germany to Switzerland

A total of 330,976 cross-border commuters (of which 181,064 reside in France, 76,941 from Italy and 60,892 from Germany) are working in Switzerland (as of Q1 2020). 80% of cross-border commuters in Switzerland concentrate on three major regions: the Lake Geneva region , north-western Switzerland and Ticino .

In the Upper Rhine area ( southern Palatinate , Alsace , northern and southern Baden , northwestern Switzerland) there is a lively, trinational cross-border commuter traffic of 94,000 workers (as of 2008).

The status of cross-border commuter from Germany to Switzerland is subject to special agreements and laws, as Switzerland is not a member of the EU.

Start of work / cross-border commuter permit

In order to be able to work for more than 90 days in Switzerland, a cross-border commuter permit ( G permit ) is required. This is requested by the future employer. For people from the EU or EFTA countries, the permit based on the Agreement on the Free Movement of Persons will be granted if you have a place of residence outside of Switzerland and usually return to your place of residence on a daily basis. You are not allowed to return home for a maximum of 60 days in the calendar year after the end of work. The same wage and working conditions must also apply to cross-border commuters as to local residents. In addition, he must return to his place of residence outside of Switzerland at least once a week and be protected against the economic consequences of illness. For foreigners outside the EU / EFTA states, additional requirements apply that must be met:

  • There is a permanent right of residence in Switzerland's neighboring country
  • The residence in the neighboring border zone abroad has existed for at least six months
  • Examination of national priority

The cross-border commuter permit for people from the EU / EFTA is valid for five years if there is an employment contract that is valid for more than one year. Otherwise the validity depends on the employment contract.

Changes (e.g. in the case of a new address or civil status change (marriage, divorce, etc.)) must be reported by the cross-border commuter to the respective cantonal migration authority.

Health insurance

Every employee in Switzerland must register with a health insurance company and pay 100% of the health insurance contributions themselves - there is no employer contribution and no automatic deduction of insurance contributions from the salary. It is therefore the duty of the employee to provide proof of insurance to the responsible cantonal office (usually the health department of the working canton) within a maximum of three months after starting the job, as otherwise a (usually comparatively expensive) assignment to a Swiss health insurance company will occur. It must be noted that the benefits of Swiss health insurances differ from those in Germany. In particular, the area of ​​dental services and dentures is usually not covered.

An annual cost share (franchise) of at least CHF 300 must be borne, but this can be increased in order to reduce the monthly insurance premiums. In addition, you have to pay a further 10% of the costs incurred up to an annual maximum of CHF 700 (deductible).

There are basically three different insurance options:

  • Insurance according to KVG with a Swiss health insurance company. With the E 106 form, insurance cover for Germany can be obtained from a statutory German health insurance company, although the contributions are paid to a Swiss health insurance company. The German statutory health insurance acts as a helping provider. For treatment in Germany, neither a deductible nor a deductible will be charged. Dental treatments in Germany are also covered, in accordance with the scope of the statutory health insurance.
  • After exemption from compulsory health insurance in Switzerland (by applying to the responsible cantonal office [health department of the working canton or joint institution KVG] within three months of starting the job), two further insurance options are available:
  1. German statutory health insurance. The contribution rate (approx. 15%) is based on the gross income earned in Switzerland up to the assessment ceiling and is therefore comparatively high. In addition, contributions to long-term care insurance must be paid (3.05% or 3.30% [for childless] of gross income up to the contribution assessment ceiling). It is necessary that the GKV covers at least the costs according to the (Swiss) federal law on health insurance.
  2. German private health insurance. Individual contributions and services. However, here, too, the health insurance must at least cover the costs under the KVG, i.e. it must also provide defined basic services for an unlimited period in Switzerland.
  3. The former "mondial" combination model of Swiss health insurance under the Insurance Contract Act (Switzerland) and private German supplementary insurance has not been offered by Swiss health insurers since 2016. Those who have previously been insured in these tariffs cannot switch to insurance under the KVG in the normal way, but on the other hand, no new insured will be accepted. This leads to the expectation of a significant increase in premiums in the long term, as there are no more young insured persons to compensate for the old age risks.

taxation

Note: Since cross-border commuters from Germany to Switzerland are usually resident in Baden-Württemberg, some statements on taxation are only applicable to cross-border commuters who are domiciled and taxable in Baden-Württemberg.

According to the agreement between the Swiss Confederation and the Federal Republic of Germany to avoid double taxation in the area of ​​taxes on income and property , cross-border commuters living in Germany who work in Switzerland are deducted a withholding tax of 4.5% from their gross wages. The actual taxation takes place in Germany, whereby the Swiss withholding tax is offset against the German income tax so that there is no double burden. Here too, cross-border commuters must return to their place of residence on at least 60 days in the calendar year after the end of their work, otherwise the taxation will change.

So that the Swiss withholding tax deduction is actually limited to 4.5%, a “Certificate of Residence for Cross-Border Commuters” must be applied for from the German tax office when starting work or changing employers. The first copy of the certificate of residence must be given to the employer so that he can deduct the withholding tax from the gross wage. The second copy remains with the cross-border commuter and the third with the tax office. For the following years, the certificate of residence valid for one year is automatically issued by the tax office or the responsible tax authority without an application.

If the German tax office is notified of the beginning of the cross-border commuter activity - which already happens implicitly by applying for the certificate of residence - the cross-border commuter has to fill out a questionnaire “Taking up work as a cross-border commuter - information for tax purposes”. The information on earnings, income- related expenses and special expenses are used to determine the income tax prepayment, which is levied every quarter.

The annual average exchange rate from Swiss francs to euros required for tax calculation is determined by the German tax authorities (based on the euro reference rate of the European Central Bank) and applies for the entire past year. Nevertheless, the use of a monthly average conversion rate is also permitted. This can be particularly advantageous if the employment has not lasted the whole year (decision of the BFH, December 3, 2009 - VI R 4/08 ).

Submitting an income tax return is mandatory for the definitive determination of the tax liability. Non-self-employed cross-border commuters from Baden-Württemberg can use the special form Annex N-Gre , which takes into account the special circumstances of an employee's activity in Switzerland (as well as Austria and France) and allows entries in Swiss francs.

See also

Web links

Wiktionary: Grenzgänger  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ^ Duden universal dictionary, 5th edition, 2003
  2. ↑ See Peter Meusburger : Die Vorarlberger Grenzgänger , Innsbruck 1969, cited without page number in: Martin Schwind: Textbook of General Geography, Vol. 8, Allgemeine Staatsgeographie , de Gruyter, Berlin, New York 1972, p. 101, ISBN 3110016346 , here online
  3. ↑ See Rick, E. u. a. (2014), p. 13
  4. ↑ See Bornhofer, M./Bornhofer MC (2014), p. 8.
  5. ↑ a b See on the Internet: ECJ (Hrgb.) (1995), p. 2.
  6. ↑ See on the Internet: EuGH (Hrgb.) (1995), p. 5.
  7. ↑ See on the Internet: ECJ (Hrgb.) (1995), p. 6.
  8. ↑ See Bornhofer, M./Bornhofer MC (2014), p. 9.
  9. ↑ See Grefe, C. (2014), p. 66.
  10. ↑ See Rick, E. u. a. (2014), p. 14.
  11. ↑ See on the Internet: IAB (Hrgb.) (2009), p. 2.
  12. ↑ See on the Internet: IAB (Hrgb.) (2009), p. 3.
  13. ↑ See on the Internet: IAB (Hrgb.) (2009), p. 4.
  14. ↑ See on the Internet: IAB (Hrgb.) (2009), p. 5.
  15. ↑ See on the Internet: IAB (Hrgb.) (2009), p. 6.
  16. ↑ The government's response to interpellations to the Landtag of the Principality of Liechtenstein on current and future admission and immigration policy. In: BuA - number 2011/38. State administration of the Principality of Liechtenstein, April 19, 2011, accessed on March 17, 2018 .
  17. ↑ Cross-border commuters. In: liechtenstein-business.li. Retrieved March 17, 2018 .
  18. ^ New cross-border commuter taxation between Switzerland and Liechtenstein. In: mybusiness.ch. Retrieved March 17, 2018 .
  19. ↑ Christiane Löh: Who are the cross-border commuters in the Greater Region? Characteristics and determinants of occupational mobility . December 2011. ISBN 978-2-87988-109-6 .
  20. ↑ The flow of emigrants to Lorraine continues ( memento of the original from March 4, 2016 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. Tageblatt, January 19, 2012  @1@ 2Template: Webachiv / IABot / www.tageblatt.lu
  21. ↑ Foreign cross-border commuters by gender, country of residence and quarter. Swiss Confederation - Federal Statistical Office, accessed on June 16, 2020 .
  22. ↑ https://www.sem.admin.ch/sem/de/home/themen/haben/nicht_eu_efta/ausweis_g__ Grenzgaengerbewilligung.html
  23. ↑ service-bw, Ministry of the Interior of Baden-Württemberg , accessed on January 6, 2015.
  24. ↑ https://www.kvg.org/de/versicherungspflicht-_content---1--1034.html
  25. ↑ https://www.bag.admin.ch/dam/bag/de/dokumente/kuv-aufsicht/krankenversicherung/sie-fragen-wir-ponsen-oblig-kv.pdf.download.pdf/broschuere-sie-fragen -we-answer-d.pdf
  26. ↑ Agreement between the Swiss Confederation and the Federal Republic of Germany to avoid double taxation in the area of ​​taxes on income and assets
  27. ↑ Certificate of residence for cross-border commuters in and from Switzerland - Form Gre-1 (PDF)
  28. ↑ http://www.fa-loerrach.de/servlet/PB/menu/1201941/index.html
  29. ↑ "Taking up work as a cross-border commuter - information for tax purposes" (PDF; 20 kB) (Form S 2 - 76)
  30. ↑ Form Annex N-Size