GENERAL INFORMATION
General info
Switzerland officially the Swiss Confederation, is situated in Western and Central Europe, where it is bordered by Germany to the north, France to the west, Italy to the south, and Austria and Liechtenstein to the east.
Total area of the country is 41,284 sq. km. The population is 7,996,026 people (2013). The German form the largest ethnic community (65%), French - 18%, Italian - 10%, other - 7%.
The capital is Bern.
The official languages are German, French, Italian, and Romansch.
The currency is Swiss franc (CHF). 1 USD is equal to 0.91 CHF.
Climate of Switzerland is temperate, but varies with altitude; cold, cloudy, rainy/snowy winters; cool to warm, cloudy, humid summers with occasional showers; avg. maximum temperature is +25°; avg. minimum temperature is -4°.
Time difference with Moscow is -3 hours.
Literacy rate is 99%.
Calling code is +41.
History
The Swiss Confederation was founded in 1291 as a defensive alliance among three cantons. In succeeding years, other localities joined the original three. The Swiss Confederation secured its independence from the Holy Roman Empire in 1499. A constitution of 1848, subsequently modified in 1874, replaced the confederation with a centralized federal government. Switzerland's sovereignty and neutrality have long been honored by the major European powers, and the country was not involved in either of the two World Wars. The political and economic integration of Europe over the past half century, as well as Switzerland's role in many UN and international organizations, has strengthened Switzerland's ties with its neighbors. However, the country did not officially become a UN member until 2002. Switzerland remains active in many UN and international organizations but retains a strong commitment to neutrality.
Government Type
Swiss confederation is a federal republic, which consists of 26 cantons.
Head of State is the Federal Council which is also the head of government.
Executive power is exercised by the government and the federal administration and is not concentrated in any one person. It belongs to Federal Council, which consists of President, Vice-President and 5 other members. The Federal Council is elected by the Federal Assembly for a four-year term. The largely ceremonial President and Vice President of the Confederation are elected by the Federal Assembly from among the members of the Federal Council for one-year terms that run concurrently.
Legislative power is formed by the bicameral Federal Assembly which consists of Council of States (46 seats - members serve four-year terms) and the National Council (members are elected by popular vote on a basis of proportional representation to serve four-year terms).
Judiciary branch is represented by Federal Supreme Court, with judges elected for six-year terms by the Federal Assembly. The function of the Federal Supreme Court is to hear appeals of cantonal courts or the administrative rulings of the federal administration.
Economy
Switzerland has a stable, prosperous and high-tech economy. In 2011 it was ranked as the wealthiest country in the world in per capita terms. It has the world's fourth largest economy by nominal GDP. Switzerland has the highest European rating in the Index of Economic Freedom 2010, while also providing large coverage through public services.
Switzerland's most important economic sector is manufacturing. Manufacturing consists largely of the production of specialist chemicals, health and pharmaceutical goods, scientific and precision measuring instruments and musical instruments. The largest exported goods are chemicals (34% of exported goods), machines/electronics (20.9%), and precision instruments/watches (16.9%). The services sector – especially banking and insurance, tourism, and international organisations – is another important industry for Switzerland.
Switzerland has an overwhelmingly private sector economy and low tax rates by Western World standards; overall taxation is one of the smallest of developed countries. Switzerland is a relatively easy place to do business, currently ranking 28th of 178 countries in the Ease of Doing Business Index.
CORPORATE INFORMATION
Legal system
The legal system of Switzerland is based on civil law system.
The main source of law is Constitution of 1874.
The Swiss Limited Liability Company is governed by the Swiss Code of Obligations (1912) revised in 2011.
Types of entity
The principal forms of business organization in Switzerland are:
- Sole proprietorship (Einzelfirma);
- Partnership (Kollektivgesellschaft);
- Limited partnership (Kommanditgesellschaft);
- Public limited company (AG);
- Ordinary partnership (Kommanditaktiengesellschaft);
- Private limited liability company (GmbH);
- Cooperative society (Genossenschaft);
- Branch of a foreign entity.
The most common structure is the
private limited liability company (GmbH).
REGISTRATION
Company name
When planning to incorporate your company in Switzerland, you can use the Zefix website (www.zefix.admin.ch) to check whether you can use your company name – or any alternative. Zefix is the central company index of Switzerland which belongs to the Commercial Registry.
The company or business name under which a commercial enterprise is operated can be freely chosen, as long as it complies with legal regulations.
Stock corporations (AGs) and limited liability companies (GmbHs) must specify the legal form as part of the company name - GmbH (or its equivalent in French or Italian). However, it is also allowed to register the business name with the suffix “Ltd”, but therefore, business name for both countries have to be registered (e.g.: RealEstate33 GmbH [RealEstate33 Ltd]). The problem is that by registering only the company name with the suffix “Ltd” people would think that the company is incorporated in the UK or another country, where the suffix “Ltd” is obligatory or common.
Certain words such as Switzerland, International, European, Insurance, Reinsurance, Fund Management, Bank, Collective Investment Schemes are sensitive and may have different capital requirements.
Registration
The following steps are required to incorporate a GmbH in Switzerland:
- Preliminary search, registration and approval of the company name – 1 day;
- Draft the articles of association in the presence of a notary public, who notarizes the personal and corporate signatures on the application form and authenticate the articles of association and the public deed of incorporation - 7 days;
- Place the paid-up capital in an escrow account with a bank - 1 day;
- File the deed certifying the articles of association to the local commercial register to obtain a legal entity - 7 days;
- Pay stamp tax at post office or bank after receiving an assessment by mail - 1 day (1 % capital with the first CHF 1,000,000 exempt);
- Register for VAT- 1 day, within 30 days after being subject to VAT;
- Enroll employees in the social insurance system (federal and cantonal authorities) - 1 day.
The formation of a Swiss GmbH takes two to four weeks from the submission of required documents to the date when the company is considered legally established (when it has legal effect with respect to third parties). The time required can be less in simple cases and depending on the location canton.
In general, no approval from the authorities, chambers of commerce or professional associations is required to establish a business. The exercise of certain professions or the establishment of specific businesses may, however, require special licenses or diplomas. All business sectors are open to foreign investment. It is not necessary that Swiss persons hold a certain percentage of the equity.
Since April 15, 2010 the State Secretariat for Economic Affairs has provided an online desk for founding companies in the form of «StartBiz». With this eGovernment solution, the complete foundation of these companies can be carried out via “StartBiz”.
Public Access to Company Information
The commercial register includes all commercial enterprises doing business in Switzerland. It specifies each company’s extent of liability and its authorized representatives. Its central focus is its public disclosure role.
All entries in and deletions from the commercial register are published in the Swiss Official Gazette of Commerce (SOGC).
Local registered office
Every business must have an address in Switzerland at which the registered offices can be contacted. This address must contain the following:
- Street
Number
- Postal code;
- City, Town or County Name
A differentiation must be made as to whether the address is the own office of the company or simply a “c/o” address. Own office would be a location which a legal entity owns or leases and where it conducts most of its administrative business where the receipt of any kind of correspondence is possible. As long as these requirements are not met, the address must be considered a c/o address. A PO Box cannot be considered a domicile in the legal sense.
Register of shareholders and directors, minutes of shareholders’ and directors’ meetings, accounting records should be kept at the registered office.
Seal
There are no statutory requirements for a Swiss company to have a seal.
Redomicile
The redomiciliation of companies to or from Switzerland is permitted.
COMPANY STRUCTURE
Directors
The minimum number of directors of a Swiss Limited Liability Company is 1. However, at least 1 director should be a Swiss resident director and in case of more than 1 director, the majority of the board of directors should be Swiss residents. There is no further restriction on the nationality or residency of the directors.
Corporate directors are not allowed.
Since a board of directors is not required, there are no requirements to the meetings of board of directors.
Directos’ information appears on public record.
Secretary
Swiss companies are not required to appoint a company secretary.
Shareholders
The minimum number of shareholders of a Swiss Limited Liability Company is 1 and the maximum is unlimited. There is no restriction on the nationality or residency of the shareholders. The shareholders of a Swiss Limited Liability Company can be individuals and/or legal persons.
Information on shareholders are not publicly accessible.
An Annual General Meeting of the shareholders must be held within 6 months of the end of the financial year. Generally 20 days notice must be given of an intended meeting unless all appropriate parties are represented directly or by proxy. Meetings may be in or outside of Switzerland.
Beneficiary
The details of the beneficial owner are disclosed to the service provider but are not available on public record. Disclosure of beneficiaries is required in connection with the opening of any corporate bank accounts.
Share capital and shares
The minimum capital requirement for a Swiss Limited Liability Company is CHF 20,000 and the maximum is CHF 2,000,000. The nominal capital must be fully paid-in upon incorporation.
The share capital of a Swiss Limited Liability Company can be denominated in any currence. It must be deposited in a Swiss bank (blocked account for company foundation).
Each shareholder has an interest in the nominal capital in the form of one or more nominal shares having a nominal value of at least CHF 100.
TAXATION
Personal income tax
Tax residents pay tax on their worldwide income. Income from foreign real estate and foreign businesses is tax exempt in Switzerland but is taken into account when determining the tax rates that will apply to the rest of the income.
Non-residents are subject to tax on income from Swiss sources.
The tax is levied at the federal, cantonal, and communal levels. Taxes are levied at a progressive scale that varies depending on the taxpayer's marital status.
Federal tax rates generally range from 0% to 11.5%.
Cantonal taxes differ not only in rates, but also in the income levels to which the rates apply. The rates can vary by half from canton to canton; the total maximum marginal rates can be over 40%. However, the total effective rates are substantially lower. For example: for a single taxpayer with an annual salary income of CHF 150,000, the total effective tax rate, including federal, cantonal, and communal tax, would be around 9% in Zug, 13% in Zurich, 14% in Lucerne, 16% in Geneva and 18% in Lausanne.
Profit from the sale of movable property (for example, shares) is exempt from tax if it is not a business income of the dealer. Profit from the sale of real estate is taxed at the cantonal level. Dividend income is taxed at ordinary rates.
Corporate income tax
Swiss companies pay tax on income generated in Switzerland.
Income attributable to overseas permanent establishments and income from overseas real estate is not taxed but is taken into account in determining the progressive tax rates applicable to other kinds of income.
At the federal level, the tax is levied at the rate of 8.5%. As the tax itself is deductible from the tax base, the effective tax rate is around 7.83%.
Corporate income tax, mainly at a flat rate, is also levied at the cantonal and communal levels. Some cantons and communes have a progressive tax scale.
Depending on where the company is located, the total tax rate, including federal, cantonal, and communal tax, ranges from 11.9% to 21.6%. The corporate income tax rate, including federal, cantonal, and communal tax, is 11.95% in Zug, 21.15% in Zurich, 12.32% in Lucerne, and 14% in Geneva.
The cantonal rates are as follows (2020):
| Canton | Maximum tax rate |
| Zurich (ZH) | 8% |
| Bern (BE) | 1.55% |
| Lucerne (LU) | 1.5% |
| Uri (UR) | 2.8% |
| Schwyz (SZ) | 1.95% |
| Obwalden (OW) | 6% |
| Nidwalden (NW) | 6% |
| Glarus (GL) | 4.5% |
| Zug (ZG) | 3.5% |
| Fribourg (FR) | 4% |
| Solothurn (SO) | 5% |
| Basel Stadt (BS) | 6.5% |
| Basel Land (BL) | 6% |
| Schaffhausen (SH) | 3.95% |
| Appenzell Ausserrhoden (AR) | 6.5% |
| Appenzell Innerrhoden (AI) | 6% |
| St. Gallen (SG) | 2.8% |
| Graubunden (GR) | 4.5% |
| Aargau (AG) | 5.5% |
| Thurgau (TG) | 2.5% |
| Ticino (TI) | 8% |
| Vaud (VD) | 3 1/3% |
| Valais / Wallis (VS) | 2.25% |
| Neuchatel (NE) | 3.6% |
| Geneva (GE) | 3.33% |
| Jura (JU) | 2.406% |
Dividends are tax exempt if there is at least 10% participation in the capital of the distributing company, or if the market value of the participation interest is at least CHF 1 million.
Profit from the sale of shares is tax exempt if at least 10% of the company's capital has been held for at least one year. When selling the remaining shareholding, if it is less than 10% of the company’s capital (due to the previous sale), an exemption is provided if the market value of the remaining shares is at least CHF 1 million.
CFC rules
Switzerland has no CFC rules.
Withholding tax
Dividends paid are taxed at the rate of 35%.
A 35% tax is withheld on interest from Swiss bonds and bank accounts. There is no withholding tax on interest on ordinary loans.
No tax is withheld on royalty payments.
The tax may be withheld on certain other income payments.
Tax rates are reduceable under double tax treaties and agreements with the EU.
VAT
Although Switzerland is not an EU member state, its value added tax (VAT) system was structured in accordance with the sixth EU VAT Directive (“Sixth Council Directive on the harmonization of the laws of the Member States relating to turnover taxes”). As a result, Swiss VAT applies to the sale of goods and services in Switzerland, and to the import of goods and services into Switzerland at the federal level only. Exports of goods and services are, in principle, zero-rated.
The standard VAT rate is 8% since January 2011. Certain goods and services are subject to a reduced rate of 2.5% (e.g. water supply, food) and others (e.g. most banking services) are exempt. A special 3.8% rate applies to the hotel and lodging industry.
Social security contributions
Social security contributions are paid by both employer and employee at the same rate of 5.3% for old age and disability insurance, at 1.1% for unemployment insurance on remuneration up to CHF 148,200 and 0.5% on the excess.
Employers also pay contributions to the family compensation fund at the rates from 1 to 3%, and contributions for occupational accident insurance at the rates from 0.17 to 13.5% for remuneration up to CHF 148,200.
Employees pay occupational accident insurance premiums at rates ranging from 1% to 4% on remuneration up to CHF 148,200. There are also contributions for occupational pensions and health insurance.
Capital tax
Cantons and communes levy tax on the capital of companies.
Tax rates range from 0.001% to 0.508% depending on the place of corporate residence of the company in Switzerland.
VAT returns must be filed quarterly, and the relevant VAT amount remitted to the federal tax office.
Stamp duty
Capital contributions are subject to a 1% stamp duty, with exemption for the first CHF 1 million.
Securities transactions involving Swiss dealers are taxed at the rate of 0.15% for Swiss securities and at the rate of 0.3% for foreign securities.
Personal net wealth tax
All cantons levy a tax on net assets – the difference between the market value of assets and the taxpayer's debt. Taxable assets include, among others, bank balances, securities, participations in companies, real estate, cars, paintings, etc.
Tax rates are progressive and depend on the canton and commune, as well as the family status of the taxpayer.
Inheritance and gift tax
Cantonal taxes are paid at progressive rates.
There are exemptions for close relatives.
Double tax agreements
Switzerland participates in various international tax mechanisms, including:
- 106 DTCs: Albania, Algeria, Anguilla, Antigua and Barbuda, Argentina, Armenia, Australia, Austria, Azerbaijan, Bangladesh, Barbados, Belarus, Belgium, Belize, Bulgaria, Canada, Chile, China, Colombia, Cote d'Ivoire, Croatia, Cyprus, Czech Republic, Denmark, Dominica, Ecuador, Egypt, Estonia, Faroe Islands, Finland, France, Gambia, Georgia, Germany, Ghana, Greece, Grenada, Guernsey, Hong Kong, Hungary, Iceland, India, Indonesia, Iran, Ireland, Israel, Italy, Jamaica, Japan, Kazakhstan, Korea (Republic of), Kuwait, Kyrgyzstan, Latvia, Liechtenstein, Lithuania, Luxembourg, Macedonia, Malawi, Malaysia, Malta, Mexico, Moldova, Mongolia, Montenegro, Montserrat, Morocco, Netherlands, New Zealand, Norway, Oman, Pakistan, Peru, Philippines, Poland, Portugal, Qatar, Romania, Russian Federation, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, San Marino, Serbia, Singapore, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Sweden, Taipei, Tajikistan, Thailand, Trinidad and Tobago, Tunisia, Turkey, Turkmenistan, UAE, Ukraine, United Kingdom, Uruguay, USA, Uzbekistan, Venezuela, Vietnam, Virgin Islands (British), Zambia.
- 10 TIEA: Andorra, Belize, Brazil, Greenland, Grenada, Guernsey, Isle of Man, Jersey, San Marino, Seychelles.
Exchange control
Switzerland has no exchange control.
ACCOUNTS
Accounting records
A Swiss private limited company should maintain accounting records. The accounting records should be maintained in CHF and be in Switzerland.
Annual accounts
A Swiss Limited Liability Company needs to prepare annual financial statements. Financial statements should include profit and loss account and a balance sheet. All these should be drawn up according to any internationally accepted standards (such as US-GAAP, IFRS, Swiss GAAP or FER) and be complete, clear and easily understood.
The accounts are not publicly accessible.
Audit
Swiss Law requires the annual accounts of a Swiss Limited Liability Company to be audited. The auditing obligation depends on the size of the limited liability company (GmbH). Regular audits apply to companies that are required to prepare consolidated financial statements and also to companies listed on the stock exchange, or if two of the three measures below are reached in two successive fiscal years:
- Total assets of CHF 10 million
- Annual sales of CHF 20 million
- An average headcount over the year of 50 employees or more
If these conditions are not met, then the annual financial statements are only subject to a limited audit (questioning of management, appropriate detailed checks, analytical audit procedures, etc.). The audit may also be dispensed with entirely, subject to the approval of the shareholders, if the company has no more than an average of ten full-time positions over the year.
Annual Return
Generally speaking, Annual Return is a short review on the current state of the company, which is prepared by the company secretary annually. As a rule it includes the following information:
- Incorporation information (registration date, registered address);
- Information about directors and their resignation;
- Information about secretaries and their resignation;
- Information about registered capital, nominal value of shares and amount of issued shares;
- Information about shareholders and share transfer.
Swiss companies are not obliged to prepare and file Annual Return.
Tax returns
The tax year corresponds to the financial year that the company can choose.
Tax returns are usually filed within six to nine months of the financial year-end, depending on the canton.
The tax office issues a tax assessment on the basis of which tax is paid.
SPECIAL TYPES OF LEGAL ENTITIES
Trusts
The anglo-saxon trust law has not been adopted into the Swiss legislation. There is no Swiss substantial law on trusts and no such thing as a Swiss domestic trust. Therefore, a trust can only be established according to foreign law, whereby the settlor may choose the governing law. However, despite the lack of substantial trust provisions, Swiss courts have been dealing with trusts for many years.
Switzerland being one of the largest trust administration centers in the world recognized eventually the Hague Convention on the Law Applicable to Trusts and on their Recognition of 1st of July 1985 with effect as of 1st of July 2007 (the "Hague Convention"), resulting in the recognition of trusts as a legal structure sui generis and in the enforcement of foreign trusts.
Since 2007 it is possible to hold Swiss property in trust. In such a case, generally the trustee is the owner of the real property and is to be registered in the land register. While EU/EFTA nationals residing in Switzerland can acquire real estates without prior authorization, third-country nationals are still submitted to a preliminary administrative authorization. If the trustee or the beneficiaries qualify as a person abroad, in principle the transfer is subject to authorization.
According to the Circular No. 30 the trust assets and the trust income will either be taxed by the settlor or the beneficiaries. Hence, a Swiss trustee is never subject to tax for the trust assets and the trust income. The trustee is regarded as the formal owner but not the beneficial owner of the trust assets.
Swiss law differs between revocable, irrevocable fixed-interest trusts and irrevocable discretionary trusts.
Revocable Trust
If a trust is qualified as a revocable trust, then the settling of the trust does not cause any change from a fiscal perspective. The settlor remains taxable and distributions to beneficiaries are treated as gifts from the settlor.
In the event of the settlor's demise, the trust becomes (for tax purposes) an irrevocable trust. Some tax authorities conclude that with the settlor's demise the settlor made a donation to the trust or the trustee and there is, therefore, an inheritance. The taxation is differs from canton to canton. Some cantons apply the highest inheritance tax rate and others take the relationship between the settlor and the beneficiaries into account and only then determine the tax rate. In most cantons the tax rate is zero if the heirs are direct descendants of the settlor. Other cantons do not follow the inheritance road but focus on whether the beneficiaries have substantial influence over the trust assets. If so, then the trust will still be treated transparently, meaning the trust assets and trust income will be taxed by the beneficiaries.
Irrevocable Fixed Interest Trust
Under Circular No 30 the creation of a fixed interest trust is treated as a donation from the settlor to the beneficiaries. The tax rate applicable depends on the degree of cognation. An assessment of gift tax on the entire trust funds can violate the principle of economic capacity, in particular, if the beneficiary is only entitled to a certain amount of the trust income. Therefore, the tax would have to be limited to the capitalized amount of the income.
In the event that the Swiss resident beneficiary has an entitlement to distributions of either capital or income he is taxed in analogy to an usufructuary. The amount of his entitlement to distribution will be capitalized and the capital value of his entitlement is subject to wealth tax. Any amount distributed to the beneficiary is subject to income tax unless made out of tax free capital gains or capital.
Irrevocable Discretionary Trust
The settlor irrevocably transferred the trust assets to the trustee and has given up any economic interest in the trust funds. The trustee cannot be taxed as he is not the beneficial owner of the trust assets.
Beneficiaries of an irrevocable discretionary trust have in general no legal entitlement to receive distributions from the trust. They have a mere expectation of benefitting from the trust. Under Swiss tax law an expectation is not taxable. However, under the Circular No. 30 a Swiss resident beneficiary of an irrevocable discretionary trust may be subject to tax if he is qualified as the beneficial owner of the trust assets.
If the beneficiary does not qualify as a beneficial owner, then the Swiss resident settlor remains tax liable for the trust fund and the trust income just as if he had set up a revocable trust. Therefore, the trust fund and trust income are still attributed to the settlor and distributions to beneficiaries are treated as gifts.
The Circular No. 30 provides for an exception of this principle in the event that the settlor was resident abroad when the trust was set up. In that case the Circular No. 30 accepts that neither the trust fund nor the trust income can be attributed to the currently in Switzerland residing settlor or the beneficiaries. Only distributions received by a Swiss resident beneficiary will be taxed as income. In practice, some tax authorities, however, do not grant the tax exemption if the settlor set up the trust shortly before he immigrated to Switzerland and declare such a pre-immigration structuring as a tax evasion.
The distribution of capital gains is not tax-free because the trust assets are not attributed to the beneficiaries for tax purposes. Distributed capital gains qualify as income.
Withholding Tax
Since the trust is not a legal entity, it cannot claim a refund of Swiss withholding tax. Swiss withholding tax paid on income arising on trust assets (mainly interest and dividends) will generally only be refundable to Swiss resident persons whom such assets are being attributed to (settlor or beneficiary).
Swiss Association of Trust Companies (SATC)
In Switzerland no duty exists for professional trustees to register with a supervisory authority. The private industry, including many of Switzerland's largest trust companies, however founded the Swiss Association of Trust Companies (SATC), mainly to develop the activities of trustees in Switzerland and to promote the adherence to certain professional and ethical standards. SATC issued minimum standards of professional credentials and a code of ethics. In 2012 SATC published a so-called "White Paper" with various proposals on the regulation of trustees in Switzerland, namely the requirement to obtain a license to carry out trustee activities in Switzerland.
Federal Act on Anti-Money Laundering
The Swiss Federal Act regarding the Fight Against Money Laundering in the Financial Sector (AMLA) is also applicable to trustees who qualify as financial intermediaries. According to the practice of the Swiss Financial Market Supervisory Authority (FINMA)20 trustees are deemed financial intermediaries as they own the trust assets separately from their personal assets. This means that trustees have among others the duty to verify the contracting party's identity, to establish the beneficial owner's identity, to clarify the economic background and the purpose of unusual transactions. In addition the AMLA provides for reporting duties on the trustee in case of any suspicious transactions. Whether protectors fall under the AMLA depends on their powers under the trust.
Foundations
The foundation according to Swiss law is a legally independent purpose fund or special fund. Depending of the purpose of a foundation, it can be distinguished between the common foundation and 3 legal special forms, namely the family foundation, the ecclesiastic foundation and the personnel welfare foundation.
Family Foundations
According to Swiss law, family foundations are characterized in such a way that property is available for a family to pay the costs of education, facilities or support of family members or for similar purposes. The family foundation is different from the common foundation in that, according to the intention of the founder, the circle of beneficiaries is limited to members of a single, specific family.
According to constant legal practice of the Federal Supreme Court, the list of purposes for which family foundation may be set up is an exclusive list. These purposes have in common that family members who belong to the circle of beneficiaries should be supported in certain circumstances.
Family foundations do not need to be registered in the commercial registry in order to obtain legal personality. They are not subject to a regulatory authority, under reservation of public law. Finally, family foundations are exempted from the obligation to mandate an auditor.
Ecclesiastic Foundations
Ecclesiastic foundations are mentioned several times in the Swiss Civil Code, however, the law does not provide a legal definition of the ecclesiastic foundation.
According to legal doctrine and jurisprudence, two conditions have to be met: on the one hand, a religious purpose is required, on the other hand, there must be a specific organizational connection to a religious community. Only foundations that serve the faith in God, are ecclesiastic.
Personnel welfare foundations
A personnel welfare foundation is often chosen as a vehicle for pension funds that serve as a continuation of living standards after retirement.
Enterprise Foundations
The concept of an enterprise foundation is unknown in Swiss legislation. Enterprise foundations have emerged in practice. An enterprise foundation is characterized by an economic activity and pursues a specific property investment policy. It differs from traditional foundations in its organizational structure.
There are many purposes behind establishing an enterprise foundation. The topic of estate planning in the broad sense is at the forefront.
Enterprise foundations have two main forms. Either there is a foundation that conducts a commercial, manufacturing or other business in the pursuit of an economic or non-economic purpose, and which is therefore directly the responsible body of the enterprise itself. Or there is a foundation that is a substantial shareholder of an enterprise.
Charitable Foundations
Switzerland is well known for its large number of international governmental and non-governmental organizations. With all these organizations active in Switzerland, it is natural that the Swiss Charitable Foundation is a frequently used entity. The combination of a favorable tax regime and a regulated environment is an advantageous one. In addition, the Federal Circulars of December 1990 and July 1994 provide a clear description of the relevant requirements. These factors combined make the Swiss Charitable Foundation an effective estate planning vehicle, that is suitable for charitable, international and philanthropist activities.
Incorporation of Foundation
The deeds of a Foundation need to be executed by a public notary, the Foundation is then registered at the Registry of Commerce to acquire legal personality. In general a minimum initial capital of CHF 50’000 is requested.
A foundation is incorporated either by a public deed or by a testamentary disposition (last will and testament or inheritance agreement). The foundation is entered into the commercial registry based on the Foundation Charter and indicating the members of the Foundation Council.
Organization of Foundation
The Foundation Charter must indicate the organs of the foundation and the nature of its administration. For the most part, the foundation is free to determine its own organization. The way the foundation is organized can be set down in more or less detail, depending on the needs of foundation. However, it is important that the organization fosters the most efficient use of the foundation’s funds.
The superior organ within a foundation is the Foundation Council, which is responsible for the supervision of the foundation’s business. The Foundation Council assumes all competences which are not expressly delegated to another body either in the Foundation Charter or in the respective regulations. The Foundation Council performs the following unalienable tasks:
- regulation of the powers to represent the foundation or to sign on its behalf;
- election of the Foundation Council and the auditors;
- approval of the annual financial statements.
It is a common practice that a Foundation Council consists of at least three natural persons or legal entities.
Supervision and Reporting
Foundations are subject to supervision by the community (federal, cantonal and municipal) to which they belong according to their designation. Foundations with an international scope are usually supervised by the Federal Authorities. In order to perform the legally required controls, foundations are required to file an annual report on their activities, annual financial statements, consisting of the balance sheet, the profit and loss statement and attachments, the auditors’ report, the approval of the reporting by the Foundation Council as well as an up-to-date list of the members of the Foundation Council.
Taxation of Foundation
When the Foundation is exclusively in the public interest, it can obtain a tax exemption (federal and cantonal), and as such gifts made and/or received by the foundation are tax-exempt. Being dedicated to public interest means, amongst others, that the Foundation should have activities in charitable, humanitarian, educational, cultural, health or scientific areas. In addition it cannot have any lucrative business involvement and the range of beneficiaries cannot be limited. The attribution of resources is irrevocable.
Dissolution of Foundation
The competent federal or cantonal authority may dissolve the foundation upon application or on its own initiative, if the purpose has become unattainable and the foundation cannot be maintained by an amendment to the foundation deed, or if the purpose has become illegal or immoral. Any person who has an interest is entitled to apply for the dissolution of the foundation.
No Reassignment Right
The Swiss Foundation law does not recognize any possibility of reassignment, which would allow the founders after a certain period to claim back the amount contributed into the foundation or parts thereof.
The implementation of a Swiss Foundation is more complex than to set up a Foundation in the Principality of Liechtenstein. Another alternative could be the set up of an Association which could have the same purpose like a Foundation.
Practical Comment
Establishment of a Swiss foundation is much more complex than a Lichtenstein foundation. Another option is to create an Association with the same purpose as a foundation.
