Outlook: Planned amendment to the cross-border commuter regulation between Germany and Austria

Nina Sonnleitner
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The applicability of the cross-border commuter regulation shall no longer be affected by home office work days in the vicinity of the border.
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The draft of an amendment protocol to the double taxation agreement between Germany and Austria is currently under review (in particular regarding Art 15 para 6 DTA). The amendments are expected to be in force as of 2024. 

In general, the DTA assigns the right of taxation with respect to salaries, wages and similar remuneration received by a resident of a contracting state from employment to the state of residence, unless the work is performed in the other contracting state. If the work is performed in the other contracting state, the remuneration received for this work may, in principle, be taxed in the other state. 

In deviation from this general rule, the current cross-border commuter regulation provides that the remuneration may nevertheless be taxed in the state of residence if the person has their place of residence in one contracting state near the border and his place of work in the other state near the border and returns daily from his place of work to his place of residence. Proximity to the border in this sense is defined as being within a zone of 30 km on either side of the border).

A tolerance agreement with Germany stipulates that up to 45 non-return days (working days) per year do not affect the applicability of the cross-border commuter regulation, whereby, in principle, home office days in the country of residence are also to be counted as (potentially harmful) non-return days. Exceptions existed due to consultation agreements during the COVID-19 pandemic for pandemic-related home office days.

The draft review specifies that cross-border workers must now merely perform their employment "ordinarily in the vicinity of the border" and thus waives the requirement for a daily commute to the employer in the vicinity of the border of the neighboring country. For any business trips outside the defined border area of 30 km, the 45-day limit of non-return days continues to apply.

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