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60 day rule
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In most agreements to avoid double taxation (DBA), As with Switzerland, it is regulated that income from work is taxed where the work is physically carried out. Please note the 60-day rule.An exception to this are so-called cross-border commuters, who return to their country of residence almost every day. 

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Definition of a 60-day rule

Anyone who cannot return to their place of residence for more than 60 days a year for professional reasons is no longer an exceptional case and is therefore not considered a cross-border commuter. In these cases, the country in which the work is carried out taxes the tax.

The subtleties of the 60-day rule

It is questionable what goes into calculating the 60 days. Actually it's not about days, but about nights. So-called on-call services by doctors and nursing staff always include overnight stays at the place of work for business reasons, but the service as such is not interrupted. Therefore, such overnight stays do not count. Activities in third countries, e.g. B. a business trip to the USA or China also do not count towards the 60-day rule and are generally taxed proportionately at the place of residence, even if the remaining income is taxable in Switzerland.

There were also repeated problems with counting when changing employers. The question arises as to whether the calculation of non-return days in the event of a change of employer should be carried out separately for each employment relationship (§ 9 Abs 1 KonsVerCHEV) or whether all non-return days within a calendar year should be added together, according to the BMF letter of December 18, 2014. After the BFH declared that the KonsVerCHEV only has the status of a legal regulation and not the law, here the DBA dominates, even when changing employers it depends on the situation throughout the year. If the cross-border activity is started or ended during the year, the accrual is made on a monthly basis. 

One-day business trips without an overnight stay are not counted

The non-return must actually occur; it depends on the number of overnight stays, not the days. It also depends on the professional reason and, in this context, the reasonableness of returning to your place of residence. The reasonableness of the employee's return to his place of residence is negated if the road distance between the place of work and the place of residence is more than 110 km or if the time required for the journey (there and back) with the means of transport normally used exceeds 3 hours.

In contrast, returning is generally always considered reasonable if the time required to travel from the place of work to the place of residence (there and back) is less than 2 hours and the road distance is less than 90 km. Furthermore, a return to one's place of residence is generally unreasonable if the employer covers the employee's housing or accommodation costs.

The German Federal Finance Court recently addressed the issue of non-return days again. One-day business trips without an overnight stay are not counted at all; for business trips lasting several days, the return day is excluded from the calculation because a return to the place of residence takes place on that day. Sick days during a business trip lasting several days are also not non-return days. Business travel days that fall on weekends or public holidays are not counted as non-return days.

However, it is a non-return day if the employee is prevented from performing his or her work during the business trip due to force majeure (strike, storm).

Jürgen Bächle
Jurgen Bachle

has been working as an independent tax consultant and expert in international tax law since 1989 and has been a member of the board of the German Association of Tax Consultants Baden-Württemberg, DSTVBW, for over 20 years.

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