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If the real estate is used for business purposes, an addition was made in accordance with the Foreign Tax Act. The BFH has now overturned this. This was long overdue, because the tax administration's perspective did not take into account that an investment in a property in Switzerland should be treated in the same way as an investment in a property in any other EU member state via the bilateral contracts.
In which country is the rental income taxable?if the property is in Switzerland? Income of a taxpayer resident in Germany from the rental of a property located in Switzerland is therefore excluded from the assessment basis for German tax if the property “serves” a permanent establishment that generates its profits from one of the active activities mentioned in the DTA. According to a ruling by the First Senate of the BFH, this presupposes that the rental income is ancillary income which, according to the public opinion, belongs to the activity in which the focus of the business activity carried out in the permanent establishment lies (functional approach).