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Old 22.01.2020, 23:03
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Driving a Swiss Registered Car in the EU by a Dual CH and EU Residence Permits Holder

Hi everyone, I tried searching but couldnít find a similar situation to what I am about to explain, hence the reason for a new thread post. By all accounts, my situation in very uncommon and would appreciate feedback if anyone has any cues or suggestions in how I should deal with the Austrian Customs Office. Here is my case:
I am a non-EU citizen Swiss Permit C holder here in Switzerland for the past 7 years. I have been working full time in the country since arriving in 2007. In 2017, I registered my own company and visit Austria often to get raw materials for my business. In each visit, I usually go by the Customs Office to get the VAT so it can be refunded to me. In 2018 I got married to my British sweetheart, but she remained in London. In Sep 2019, I received a resident permit from the UK due to my wifeís being British and currently living in London. So, I have been visiting her about once a month since September based on this UK permit. So, this left me having two residence permits but I am tax resident in Switzerland. I do not have any financial or non-financial arrangements / commitments in the UK other than my roughly once a month visits to see my wife and she flies in every other week to Switzerland. Never worked in the UK or filed any taxes there because I will fall under the non-resident tax status for 2019 tax year. All of my lifeís economic and social activities revolve around and in Switzerland.
So last month Dec 2019 (two months after receiving the UK Permit) I drove into Austria like I have done in the past 3 years and upon coming back I stopped by the Customs Office to get my VAT stamp. He asked for my ID and I handed him my Swiss Permit. As both permits were in the same area in my wallet, the Custom Officer saw that another card is in my wallet and asked for it and I handed him the UK Permit (both permit cards look similar in design, color and size). Unbeknownst to me or rather based on ignorance of the law, the Custom Officer declared that I am an EU resident and driving a non-EU car in the EU is a tax crime, therefore, I had to pay customs duties and VAT on the car. The car is mine, bought in Switzerland, registered in Switzerland and in my name, with my Swiss driving license, insurance and the whole nine yards of everything is Swiss based. The Custom Officer, who initially didnít really know what to do and had to consult 3 layers of command because my case is unusual, maintained that I am an EU resident by virtue of my UK permit and that none of Swiss IDs matter including my Swiss permanent residency, Swiss driving license and that I was in Austria to buy good for my Swiss registered business. He went on to say I was evading taxes and that is a criminal offense. He gave me the details of the laws I was charged with and I noticed the law states that: EU residents cannot drive a non-EU registered car in the EU. There are exceptions to this rule in the case if the owner of the registered car is with the EU resident in the EU during the time the car was driven by the EU resident.
I believe I am not an EU resident based on the fact that my tax residency is Switzerland and I only use the UK permit to visit my wife once a month.

Assuming that do decide that by virtue of my UK permit, I am EU resident regardless of the fact that my center of life and tax residency is Switzerland, could I argue that the following EU rule excerpt below will give me relief from custom taxes.

ďArticle 215
Use of means of transport by natural persons who have their habitual residence in the customs territory of the Union (Article 250(2)(d) of the Code)
1. Natural persons who have their habitual residence in the customs territory of the Union shall benefit from total relief from import duty in respect of means of transport which they use privately and occasionally, at the request of the registration holder, provided that the registration holder is in the customs territory of the Union at the time of use.Ē

Link to EU relevant EU rules: https://lenews.ch/wp-content/uploads...U-20152446.pdf

Article 215 is on page 95.

The reason being, EU resident driving the non-EU car (me) in the EU is also the non-EU resident owner of the car (me) that was present in the EU when the car was driven by the EU-resident (me).

This whole issue is beginning to weigh on me, especially the criminal conviction element that fine comes with.
Anyone here seen a similar situation and would like to share pointers with me on how to proceed with the case? I am also checking with lawyers who I can work with but would like to know how anyone with a similar situation dealt with it.

Thanks for your time reading and sharing your thoughts
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Old 22.01.2020, 23:23
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Re: Driving a Swiss Registered Car in the EU by a Dual CH and EU Residence Permits Ho

Your use of Art. 215 of the Commission Delegated Regulation (EU) 2015/2446 (official link https://eur-lex.europa.eu/legal-cont...LEX:32015R2446 ) seems to be a far stretch as you yourself would be the "the registration holder" giving "the request" to drive to yourself. I do not think that will work.

This is more for the situations like:
Lets go to a wine tasting tour. You can drive my Swiss car.
Oh, I am sick could you please drive?
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Old 23.01.2020, 00:09
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Re: Driving a Swiss Registered Car in the EU by a Dual CH and EU Residence Permits Ho

Are you registered in the UK?
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Old 23.01.2020, 00:44
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Re: Driving a Swiss Registered Car in the EU by a Dual CH and EU Residence Permits Ho

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Your use of Art. 215 of the Commission Delegated Regulation (EU) 2015/2446 (official link https://eur-lex.europa.eu/legal-cont...LEX:32015R2446 ) seems to be a far stretch as you yourself would be the "the registration holder" giving "the request" to drive to yourself. I do not think that will work.

This is more for the situations like:
Lets go to a wine tasting tour. You can drive my Swiss car.
Oh, I am sick could you please drive?
Iím just throwing it out there. Thatís because I donít think EU rules cover my scenario and I find it stunning that they can wholly ignore my Swiss residency and apply the UK residency that I do not even qualify in the UK as a tax resident.
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Old 23.01.2020, 00:45
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Re: Driving a Swiss Registered Car in the EU by a Dual CH and EU Residence Permits Ho

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Are you registered in the UK?
What do you mean registered in the UK? Like we do here in Switzerland at the Gemeinde?
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Old 23.01.2020, 03:53
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Re: Driving a Swiss Registered Car in the EU by a Dual CH and EU Residence Permits Ho

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What do you mean registered in the UK? Like we do here in Switzerland at the Gemeinde?
By your own admission you hold a UK residents permitted and the Austrian authorities are aware of this. That is a matter of record and there is no way of getting away from it now. You are not a UK resident, so why you applied for such a permit is beyond me, that is your business.

This is not the first time this happened: https://www.thelocal.ch/20140606/ger...border-mistake

This is a well known problem, an EU resident can’t even rent a car in Switzerland and drive it across the border without getting into trouble! They need to tell the rental agency before had and get a car that has been cleared for entry into the EU.

Get a good lawyer is all I can advise and be aware that the UK authorities may not be very happy either.
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Old 23.01.2020, 08:53
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Re: Driving a Swiss Registered Car in the EU by a Dual CH and EU Residence Permits Ho

I think the OP needs to proceed very carefully, and legal assistance would be recommended.

Although one can theoretically have multiple nationalities without too much problem, claiming multiple residencies is frought with danger, as you have now discovered. Tax residency is a logical assumption, otherwise you are a visitor (which in effect, you are).

No doubt the UK resident permit was convenient for travel, but the obligation is on the OP to understand the legal pitfalls of trying to have a foot on both sides of a fence.
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Old 23.01.2020, 10:07
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Re: Driving a Swiss Registered Car in the EU by a Dual CH and EU Residence Permits Ho

I just find this law as complete absurd and just thinking if Iím breaking the law as well? Iím eu citizen, living in Switzerland lat 8 years. I drive swiss car which is registered to my partner name. I often go to France for shopping or swimming pool just outside Geneve. So it seems I like Iím breaking the law and could be fine for bringing not EU registered car into EU?
And how this law applies to other EU citizens living in Switzerland? For example my partner. He is uk national, living in Switzerland but he also runs a business in UK and spends some time there as well. He drives a lot his swiss car in EU , so maybe he is breaking the law as well?
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Old 23.01.2020, 10:09
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Re: Driving a Swiss Registered Car in the EU by a Dual CH and EU Residence Permits Ho

You are resident of CH and you drive a Swiss registered car. Not a problem.


Your nationality is not important here, your place of residence is.


Re your boyfriend: depends on where his residency is.
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Old 23.01.2020, 10:10
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Re: Driving a Swiss Registered Car in the EU by a Dual CH and EU Residence Permits Ho

It is based on residence, not citizenship nor licensing country.

Tom
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Old 23.01.2020, 10:37
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Re: Driving a Swiss Registered Car in the EU by a Dual CH and EU Residence Permits Ho

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By your own admission you hold a UK residents permitted and the Austrian authorities are aware of this. That is a matter of record and there is no way of getting away from it now. You are not a UK resident, so why you applied for such a permit is beyond me, that is your business.

This is not the first time this happened: https://www.thelocal.ch/20140606/ger...border-mistake

This is a well known problem, an EU resident can’t even rent a car in Switzerland and drive it across the border without getting into trouble! They need to tell the rental agency before had and get a car that has been cleared for entry into the EU.

Get a good lawyer is all I can advise and be aware that the UK authorities may not be very happy either.
If you read my post properly, you would know I have the permit by virtue of my marriage to my wife, who’s British in London and can’t move now to Switzerland.

The UK authorities know of my residence in CH and there isn’t anything hidden from both the UK and Swiss authorities. So don’t give the perception that something is illegal with me having dual residence permits.

I’m looking for feedback on whether indeed it is correct that the Austrians considered me an EU tax resident even though I am not a tax resident in the UK.
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Last edited by princeali; 23.01.2020 at 10:39. Reason: typo
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Old 23.01.2020, 10:39
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Re: Driving a Swiss Registered Car in the EU by a Dual CH and EU Residence Permits Ho

Didnīt know that you got a permit based on marriage only? Why did you accept it?


And yes, in principle the Austrians have a point as you have a UK permit. Get a lawyer.
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Old 23.01.2020, 10:43
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Re: Driving a Swiss Registered Car in the EU by a Dual CH and EU Residence Permits Ho

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I think the OP needs to proceed very carefully, and legal assistance would be recommended.

Although one can theoretically have multiple nationalities without too much problem, claiming multiple residencies is frought with danger, as you have now discovered. Tax residency is a logical assumption, otherwise you are a visitor (which in effect, you are).

No doubt the UK resident permit was convenient for travel, but the obligation is on the OP to understand the legal pitfalls of trying to have a foot on both sides of a fence.
Indeed, I am seeking legal representation on this case. Thanks for your input.
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Old 23.01.2020, 10:47
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Re: Driving a Swiss Registered Car in the EU by a Dual CH and EU Residence Permits Ho

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Iím looking for feedback on whether indeed it is correct that the Austrians considered me an EU tax resident even though I am not a tax resident in the UK.
Still wondering if you also have registered in the UK?

If you also have an address in the UK, and your wife lives there and you spend enough time there, they could decide that you indeed are a UK resident.
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Old 23.01.2020, 10:54
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Re: Driving a Swiss Registered Car in the EU by a Dual CH and EU Residence Permits Ho

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Still wondering if you also have registered in the UK?
Like France and the US, UK does not have "registration" as we know it. Hence the need for utility bills and other strange stuff to proof residency. But as he has a UK residence card in the common format there might nevertheless be some kind of registration.
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Old 23.01.2020, 10:59
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Re: Driving a Swiss Registered Car in the EU by a Dual CH and EU Residence Permits Ho

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Still wondering if you also have registered in the UK?

If you also have an address in the UK, and your wife lives there and you spend enough time there, they could decide that you indeed are a UK resident.
I have an address with my wife in the UK. I still don’t understand what you mean by registering with the UK. I received no letter from the Home Office asking me to go register somewhere e.g City Council after sending the permit. Where exactly should one register in the UK?

Last edited by princeali; 23.01.2020 at 11:14. Reason: Typo
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Old 23.01.2020, 11:22
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Re: Driving a Swiss Registered Car in the EU by a Dual CH and EU Residence Permits Ho

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Didnīt know that you got a permit based on marriage only? Why did you accept it?


And yes, in principle the Austrians have a point as you have a UK permit. Get a lawyer.
It’s a long story but given the myriad of issues I may be facing, I’ll relinquish the UK residence permit as soon as this case is over. I don’t want to do it now because the Austrian Court may interpret that unfavorably to my case.
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Old 23.01.2020, 11:32
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Re: Driving a Swiss Registered Car in the EU by a Dual CH and EU Residence Permits Ho

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Like France and the US, UK does not have "registration" as we know it. Hence the need for utility bills and other strange stuff to proof residency. But as he has a UK residence card in the common format there might nevertheless be some kind of registration.
That only applies to EU/EEA/CH/UK citizens, everyone else has to have the correct paperwork, visas etc and registration with the home office.
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Old 23.01.2020, 11:33
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Re: Driving a Swiss Registered Car in the EU by a Dual CH and EU Residence Permits Ho

As I see it the question is simply: Are you a resident in the EU customs and VAT area? If yes, all EU VAT and duty rules apply and you can not claim the tourist exemptions given by the Istanbul convention on temporary admission http://www.wcoomd.org/en/about-us/le...8C6281DC8.ashx .

Prima facie you are such an EU resident given by the fact you have a UK resident card in the common format.

That you are also a Swiss resident does not help in itself as you must not be a resident of the customs territory you bring stuff in.

Looks like you have to proof that although you have an UK resident card you are not a "person established in the customs territory of the Union" which is person who has his or her habitual residence in the customs territory of the Union. Art. 5 Section 31 Regulation (EU) No 952/2013

Habitual residence is the key. In practice it means the place where you have your center of interests. If you visit your wife in the UK only once every month, and she comes more often to visit you, that could be Switzerland.
If there is no definition in the customs and VAT regulations one might argue based on Article 11 of the Social Security Regulation (EC) No 987/2009 https://eur-lex.europa.eu/legal-cont...LEX:32009R0987
See also https://ec.europa.eu/social/main.jsp...intPageId=4850
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Old 23.01.2020, 11:40
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Re: Driving a Swiss Registered Car in the EU by a Dual CH and EU Residence Permits Ho

The key point here is that you can only be resident in one country. The fact that you hold permits for two confuses the issue, but given what you've said that one country would be Switzerland, so in law you'd be viewed as a Swiss resident only and you should proceed on this basis.

It's a general principal in law that when there's been an error of some sort, knowingly trying to exploit it may be viewed as an attempt to defraud, so you should think very carefully before doing something that's based on your claim to UK residency. You clearly don't actually live there, and claiming that you do may well get you into much more trouble if/when you're found out.
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