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Old 09.01.2008, 10:54
Richard Richard is offline
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Re: End of the 'expat' benefits ??

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... as is the document dated 23 Oct 2007, that declares the abovementioned law 'illegal' ... copy being mailed to you
Hi Dino, thanks for sending me the copy.

To summarize what they actually have said. Firstly, that you have no claim which to be honest is correct according to the law. They have also said that their decision is subject to a judicial review. Judicial reviews take an appreciable length of time and therefore the current law on expatriate allowances is not going to disappear any time soon.

And then there is their reasoning which is to be equally honest in parts rather dumb. E contrario...

There are two key points they are basing their argument on along with common court practices but as any judge will tell you cursus curiae est lex curiae ie just because it is practice doesn't make it law. and additionally the practices they are quoting pre-date the law (and indeed some of their quoted additional sources) so it is very questionable as to their relevance so really concentration should be on the principles they are referring to. They are:
1. Equality
2. That tax deductions must be closely related to the job itself.

To the first, while this is not on the face of it, is something right, it is wrong. The argument used is that by providing an advantage to a specific group, in this case expatriates, you are treating them advantageously in comparison to non-expatriates. This cannot be accepted as an argument as if it was then the whole tax system would need to be scrapped ipse dixit.
Fundamental inequality exists per se throughout the Swiss tax system, notably by allowing Gemeinde/Commune to set their own tax rate giving an advantage or disadvantage to its citizens with no means of non-citizens sharing. This is a parallel situation. Furthermore, couples with children enjoy a tax advantage by giving them a deduction(per child) which is not enjoyed by couples without children. Furthermore, a labourer can claim for work clothes, but an office worker cannot claim for a suit (although they are work clothes) etcetera etcetera. Oh and then there is the question of the bilateral agreement with the EU - this goes far too deep to be simply rejected by such argumentation.

2. This is again on the face of it a valid argument and maybe it is even valid. The basis of the ExpaV is that an expatriate is placed at a financial (and personal) disadvantage by providing a service over a short space of time for a company in Switzerland providing he maintains some links to a "home base". While this is also within this decision accepted as a valid point the question of how this is translated into an equalized situation is not. The two key areas that are rebuffed are housing allowance and the school allowance. In what way are they actually directly related to the employment of the ExpaT. Looking at what is said there is a distinct and valid argument that while difficult to deny is also difficult to rule upon q.v. compassionate leave and when is an absence too long? Why then? Take the situation of an expat coming for 6 months. Most people would say that in this situation one parent should stay at home and the other should come here do the job and go home and anyway go home at weekends. Okay but what if home is Japan or Australia and what if they are a single parent. So you cannot rule in such a way and need to accommodate this issue. Work on the principle who would agree to rent for 6 months to someone and at what cost... That given the company needs to rent and there needs to be tax relief for this. But when do you say no more, after 12 months, 2 years or maybe 5 years!!! That a line needs to be drawn in the sand is agreed and the line is currently 5 years. If you agree in principle that a line needs to be drawn you cannot use a principle argument to say it is too far out.

Which then leaves school costs. This is two fold and contradicts in many respects Article 25 of ANAG and Article 53 of the Bundesgesetz über die Ausländerinnen und Ausländer in that, both of these documents promote the integration of foreigners with the provision of financial assistance (what is a tax allowance but that) and additionally that foreigners should not be placed at an unnecessary disadvantage due to, amongst other things, language.

Given the above, it is pretty clear that a pupil coming to Switzerland for a very short duration will be seriously disadvantaged if they are not able to go to an international school that considers their home education system due to lack of financial support and talking of the constitution

The Federal Constitution, which entered into force in 2000, contains a provision on equality and non-discrimination (art. 8). By amending the article of the previous Constitution, which stated that “All Swiss are equal before the law”, article 8, paragraph 1, affirms the equality of all “human beings” before the law. Paragraph 2 of the same article declares that “Nobody shall suffer discrimination, particularly on grounds of origin, race, sex, age, language, social position, lifestyle, religious, philosophical or political convictions, or because of a physical or mental disability.”

Given that the constitution supercedes all other laws (exception, certain international laws) and that not providing some form of support would be discrimination based on the above highlighted points, their argument that this would be a conflict of the same article is nonsense.

In any case, something that is clearly of good news to all foreigners currently sweating about the aforementioned decision by the tax appeals commission, there is the fundamental principle of ex post facto which basically states that you cannot repeal an existing law and penalise someone retrospectively. Hence while Dino never met the basic principles of ExpaV those that do cannot be penalised ie tax advantages cannot be withheld until such times as the ExpaV is repealed.

In short the decision as founded asks fundamental questions that go to the very heart of Switzerlands policies on foreigners - perhaps the authors of this decision are not aware of the change in Article 8 of the constitution that all human beings also now includes non-Swiss citizens...
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