Global Mobility

Adjustments DTT Austria - Germany

By:
Mag. (FH) Nina Sonnleitner, MSc
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As of 01.01.2024, the following amendments to the double taxation agreement with Germany will become effective
Contents

Exemptions from the establishment of a permanent establishment

Article 5 (4) provides for an exception from the establishment of a permanent establishment if it serves merely preparatory or auxiliary activities. This means that the new version is intended to prevent circumvention of the permanent establishment status on the basis of the list of exceptions regarding the establishment of permanent establishments and thus ensure that the exception only applies if the activities listed in the list are actually of a preparatory nature or constitute an auxiliary activity. This clause is a clarification.

 

Cross-border commuter regulation – homeoffice days are no longer harmful

The cross-border commuter regulation (Article 13, paragraph 6) is amended to the extent that remuneration which a resident of Germany or Austria receives from employment is only taxed in the state of residence if the person:

  • has his principal residence in that Contracting State in the vicinity of the border, and
  • normally carries on the employed activity in the vicinity of the frontier.

Whereas near the border includes a zone 30 km on both sides of the border (a list of municipalities will be published) and usually means working outside the border, in whole or in part, on no more than 45 working days per calendar year (whereby vacation days and sick leave days are not harmful). It is further stipulated that days outside the zone may not be more than 20% of the actual working days.

A daily commute from the place of residence close to the border to the place of work close to the border is therefore not decisive for the allocation of the right to taxation, but purely a working (in the home office) and living within the border zone. 

The new regulation means a significant change in the treatment of home office days within the framework of the cross-border commuter regulation between Germany and Austria. According to the previous regulation, valid until 31 December 2023, home office days were negative for the cross-border commuter regulation, which required a return to the place of residence on each working day and thus a crossing of the border. Home office days count towards the tolerance rule of 45 possible non-return days for the cross-border commuter regulation in the DBA Germany until 31 December 2023. 

In the DBA valid from 1 January 2024, home office days are no longer detrimental to the use of the cross-border commuter regulation.The consequences of home office work with regard to the possible establishment of a permanent establishment for income tax purposes should also be taken into account by the employer.

 

Extension of the cross-border commuter regulation to employees in the public sector

The extension of the cross-border commuter regulation to employees in the public sector (Article 19 (1a)) leads to the exclusive right of taxation being due to the employer state, i.e. the cash state, in accordance with the cash state principle. This means that there is no division between the two contracting states.

 

Introduction of a de minimis rule for local employees

According to Article 19 (1), so-called local employees may - in deviation from the basic cash state principle - only be taxed in the state of residence if the services are rendered in this state. In order not to have to split the salaries of local employees if they work for a short time in the cash state, a de minimis rule of 10 working days is to be introduced, according to which the right of taxation in such cases remains in the state of residence.

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