Here’s one for the tax advisers and employment lawyers among you.

I work for a company in the Geneva canton as a sales consultant. I get paid a commission, which is paid to me gross, with no deduction of tax. I have been doing this for eighteen months on a B permit, and it is likely that I will be returning very soon to the UK for family reasons.

The company in question have always maintained that they do not employ me – I have a contract of service with them. The company’s accountant (a third party company) has attempted to register me with one of the associations in Geneva as an independent (self employed) individual. This has been a long-winded process, and the association has finally responded to say that they do not consider me as independent.

The result is that, although I will pay my taxes, I will not have been registered for AHV/AVS/social security. This means that my children will miss out on any backdated child benefit payments, that would have been paid to me if I had been properly advised – not insubstantial amounts.

I have considered the possibility of whether the relationship between me and the company could be seen more as one of employer/employee. For example, if I don’t generate sales in any given month, I will be given an advance against future commissions (e.g. there is a safety net that one could construe as a salary). Also, I have a holiday entitlement and a holiday form to complete if I want time off. Furthermore, I have a desk in the office, where my hours are habitually 9-5.

I am clearly concerned about the loss of child benefit over the time I have been here, and I also wonder if perhaps my time in Switzerland has been somehow illegitimate.

I’d be glad of any thoughts / comments; particularly in respect of whether I have any recourse in respect of the social security / child benefit side of things.

Good evening,

- So what you are saying is that you are a service provider with only one client - correct? And no corporate entity or anything else is behind this - you are essentially a contractor - correct?

- The lines between being independent and being employed are a bit blurry, if you only have one client, and you have to report regularly to them and there is a relationship of subordination, more often than not you will be considered to be an employee. To illustrate here some explanations concerning sale representatives contracts in English: http://www.employment-law.ch/particu...ives-contracts

- If you are to be considered as an employee - then the social security contributions will have to be paid on both sides - as some are deducted from the salary as well. To be honest, the way you describe your working environment you should be considered as an employee.

- However if you are independent you have to declare and pay them yourself in their entirety. Which could become an issue, as you have been working for 18 months and have apparently declared nothing so far.

- The worst case scenario would be if you are considered a service provider from the EU, do you have a company there? Because that would mean 1. You have an incorrect permit. 2. You have overstayed the legal time period. 3. You have not been declared.

I would get this sorted as soon as possible, otherwise the administrative and legal madness that will follow could become a real headache.

Regards

international

Thanks for your reply. Yes, I believe what you say is correct - I am essentially a contractor.

But as you say, I think my relationship with the company might be considered employee/employer when scrutinised.

The accountant that the company use seems to think that I can exit Switzerland without worrying about the social security side of things, as long as I pay my income tax. It sounds like you disagree with this.

Does the fact that I'm probably leaving Switzerland have an impact? Can all of this be resolved retrospectively from the UK?

You are very welcome.

I think what your accountant is saying is incorrect - it sounds like the company wants to avoid paying the social security contributions.

This can also have consequences on your pension in the UK - as they are coordinated between Switzerland and the EU.

I would definitely take action, and begin before you leave. You can give someone Power of Attorney in order to handle your case after you leave - or to at least receive correspondence.

What kind of residence permit have you received? As an employee or as an independent contractor?

In Zürich you would be classed as an employee (my experience). I think the company are trying to pull a fast one (also my experience) and not meet their obligations. I don't think sorting it out from the UK would be possible.

Have you filed a tax return since being here? Do you have an AHV number?

I think you are muddling the situation. Your AHV / AVS contributions, can be paid voluntarily, and are only contributions for your state pension at 65 years old.

The child allowance is paid out from an employers' fund. Until recently, if you were not employed you did not get any child allowance.

One extra point the child allowance fund insists on: is a statement from your ex-wife's (or husband's) social security, (Can also be from a foreign country) that she is not receiving anything from them for the children.

However if you were correctly employed, you could claim for your children living elsewhere in the EU.

In your case it might take a year before they make a decision, if it was positive you would get the payments back paid to the day you arrived here, or the child was born here.