<h3>Transfer Stamp Duty on M&amp;A Transactions</h3>
The acquisition or sale of a company (share deal) is subject to the Swiss transfer stamp duty of 0.15% (domestic company) or 0.3% (foreign company) if a domestic securities dealer is involved in the transaction as a party or an intermediary.
The term «securities dealer» is defined in the Stamp Duty Act. In addition to domestic banks and brokers, domestic companies that hold more than CHF 10 m in securities (e.g., participations) according to their last balance sheet are also considered securities dealers. This also applies to holding and intermediate holding companies if they show participations with a book value of CHF 10 m.
Foreign companies, on the other hand, are not considered securities dealers. If a domestic group acquires a participation through a foreign subsidiary from a foreign counterparty, neither party is a securities dealer. The transfer stamp duty is therefore only due if a securities dealer is involved in the transaction as an intermediary.
<h3>Management Company as an Intermediary in an M&amp;A Transaction</h3>
In addition to an investment bank, broker, or M&amp;A boutique, a group company that is a securities dealer can also be an intermediary according to the practice of the FTA and the case law of the Federal Supreme Court. This is always the case when the negotiation in the M&amp;A transaction is conducted by officers or employees of a group company that is a securities dealer.
If the group has a management company, the person responsible for the negotiation is usually employed by this company. The transfer stamp duty is therefore always due if this management company is a securities dealer.
If such a management company does not have securities (e.g., participations) with a book value of CHF 10 m on its balance sheet, it is generally not considered a securities dealer. This is different if the management company&#8217;s activities primarily involve acting as an investment advisor or asset manager to facilitate the purchase and sale of securities (so-called commercial intermediary).
In recent years, the Federal Tax Administration (FTA) has had a very extensive understanding regarding the question of when a management company is considered a commercial intermediary and thus a securities dealer. In the practice clarification dated November 1, 2024, the FTA adjusts this practice. From now on, intermediary activities for a group company do not result in a company being classified as a commercial intermediary and thus as a securities dealer. Therefore, group-owned management companies that have less than CHF 10 m in securities on their balance sheet will no longer be considered intermediaries.
This practice clarification by the FTA is very welcome. It eliminates the disadvantage for group companies where the M&amp;A team is employed in a domestic management company compared to those with an M&amp;A team based abroad.
<h3>Group Parent Company as Intermediary for the M&amp;A Transaction</h3>
The group parent company is regularly a securities dealer for purposes of the transfer stamp duty because it holds participations with a book value of more than CHF 10 m. In its ruling of February 25, 2021, the Federal Supreme Court stated that the group parent company is always an intermediary in terms of the transfer stamp duty if it acts like a proof or intermediary broker.
In its practice clarification dated November 1, 2024, the FTA clarifies that there is particularly no proof or intermediary brokerage if the group parent company commissions an independent investment bank with a transaction (purchase or sale of a participation) and compensates it for this, or if the negotiations are conducted by a person who does not belong to the domestic holding company.
Thus, the domestic group parent company is also generally not considered an intermediary for M&amp;A transactions. This clarification is also very welcome, as there has been some uncertainty in this regard since the Federal Supreme Court ruling of February 25, 2021.
<h3>Effective Date</h3>
The practice clarification of the FTA dated November 1, 2024, will be applied immediately and will apply to all currently pending open cases with the FTA. However, retroactive application is excluded.
<h3>Conclusion</h3>
Through the clarification of practice, it is possible for domestic corporations to continue concentrating their M&amp;A activities in a domestic management company without this automatically leading to transfer stamp duty consequences for the acquisition and sale of participations, provided that the purchasing or selling company itself is not a securities dealer. This is particularly relevant with regard to the acquisition of participations in foreign companies, as these are usually acquired through foreign holding companies. This clarification is very welcome, as it eliminates the disadvantage for Swiss multinationals in international M&amp;A activities.

Homburger Bulletin / Cash-or-Title Dividend (COTD)

Transfer Stamp Duty for Intra-Group Intermediaries

<h3>Important clarification regarding Juso inheritance tax initiative</h3>
The Young Socialists party has submitted an initiative to introduce a Federal inheritance tax. The initiative will be put to the vote in 2026 at the earliest. The tax demanded by the initiators is an inheritance tax of 50%, with a tax-free amount of CHF 50 million being applied. The tax revenue would have to be used to combat the climate crisis.
Although polls show that the chances of the initiative being accepted are negligible, it has caused a certain amount of uncertainty among the taxpayers concerned. The reason for this is the measures demanded by the initiators to prevent tax avoidance through relocation.
In interpellation 24.3763 submitted on June 14, 2024, National Councillor Schneeberger called on the Federal Council to clarify which specific measures are being considered to prevent tax avoidance in order to quickly clarify the potential implementation of the initiative.
In its response published today, the Federal Council states that it considers the retroactive taxation of estates and gifts demanded by the initiators to be highly problematic in terms of Government policy. It also makes it clear that it will comment in detail on the interpretation of the popular initiative and its possible implementation in the event of its adoption in the dispatch by the beginning of February 2025 at the latest.
The Federal Council has now already announced that the implementation must in any case comply with international law and the Constitution. An exit tax is therefore out of the question. The relocation of a person abroad cannot simply be qualified as tax avoidance and sanctioned with tax consequences. At best, a retroactive right of taxation would be conceivable in the case of a gift made shortly after moving away. However, the Federal Council emphasizes that Switzerland would not be able to enforce such taxation abroad.
The Federal Council also states that the introduction of tax avoidance measures must always comply with constitutional and international law requirements and, in particular, the principle of proportionality. 
According to the Federal Council, it is also questionable whether a retroactive entry into force of the inheritance and gift tax would also apply to the required measures for tax avoidance if the initiative was accepted.
The Federal Council&#8217;s response makes it clear that a precautionary departure from Switzerland before the day of the vote is not necessary. Even in the unlikely event that the initiative was accepted, it would still be possible to leave Switzerland after the day of the vote without incurring the inheritance tax demanded by the Juso.
With its response to the Schneeberger interpellation, the Federal Council has provided clarity on this issue, which is extremely gratifying. It has thus sent an unmistakable signal that it is not necessary to leave Switzerland before the voting day.
In view of the Federal Council&#8217;s clear response, we do not consider it necessary for taxpayers to plan to leave Switzerland at this stage. According to current polls, the initiative has no chance. If, contrary to expectations, the initiative was accepted, it would still be possible to leave Switzerland after the day of the vote without any negative tax consequences. However, we recommend reviewing the situation again in February after publication of the message.

RZ_Preview_VST_SB_02

Federal Council rejects exit tax

On June 18, 2023, the Swiss people approved a constitutional amendment that enables the Federal Council to introduce, on the basis of a temporary ordinance, the global OECD/G20 minimum taxation with a so-called Effective Tax Rate (ETR) of 15 percent for multinational groups with a consolidated annual turnover of 750 million euros or more in Switzerland. All other companies are not affected by this reform.
The Federal Council will adopt the OECD/G20 model rules by means of a static reference. The model rules are also to be interpreted in accordance with the associated OECD/G20 commentary and guidance. A federal law will subsequently be enacted in the ordinary procedure. While the Federal Council is authorized to introduce the minimum taxation as early as effective January 1, 2024, it is expected that Switzerland will likely follow the EU timetable, to the extent the latter caters for effectiveness in the EU member states at a later date. Separately, the minimum taxation already has a retroactive effect, as the transitional rules already apply to certain transactions on or after November 30, 2021.
Companies to which the new regime applies will be subject to comprehensive documentation and declaration obligations. The cantons will be responsible for assessing and levying the minimum tax. A so-called one-stop-shop is planned: The canton in which the economically most significant unit of the group is domiciled is tasked with levying the minimum tax for all units in Switzerland. For interpretive questions arising as part of the implementation, the cantons may turn to a working group consisting of representatives of the cantonal tax administrations and the FTA. Affected companies can check specific questions of interpretation with their competent canton.

Yes to OECD/G20 Minimum Taxation

Corporate / M&A

Homburger News

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Homburger advised the Kellenberger family on the reduction of its shareholding in Calida Holding AG

The Kellenberger family has significantly reduced its shareholding in Calida Holding AG (the Company) in two transactions, a public buy-back offer and a direct repurchase.
Homburger advised the Kellenberger family on these transactions.
The Homburger team was led by Dieter Gericke and included Hansjürg Appenzeller, Daniel Häusermann, Cédric Berger, Thierry Burckhardt, Caspar Wehrle and Marc Abplanalp (all Corporate / M&amp;A) as well as Reto Heuberger, Arbnor Sheholli and Philipp Stiegeler (all Tax).

Financing and Investment Products

Regulatory

Homburger advised TowerBrook Capital Partners, a London and New York-based investment company, on its acquisition of a majority stake of the IDAK Food Group. The management team of IDAK Food Group retains a minority stake. IDAK Food Group is a strongly networked group of specialized companies and manufacturers in the premium frozen food sector.
The Homburger team was led by Anna Peter (Corporate / M&amp;A) and Jürg Frick (Financing and Investment Products) and included Héloïse de Jamblinne, Alessandra Dumitru and Carolina Rodriguez (all Corporate / M&amp;A), Nathalie Scherrer (Financing and Investment Products), Reto Heuberger and Juliette Buob (all Tax) as well as Richard Stäuber, Andreas Burger and Christoph Grüninger (all Regulatory).

Homburger advised TowerBrook Capital Partners on its acquisition of IDAK Food Group

Litigation

Competition

IP / IT

On August 19, 2024, Genedata AG announced that it has been acquired by Danaher Corporation (NYSE: DHR), a leading global life science and diagnostic innovator.
Founded in 1997 and headquartered in Basel, Switzerland, Genedata is at the forefront of transforming data into intelligence for the life sciences industry. It delivers scalable and open solutions that enhance R&amp;D productivity, serving top global biopharmaceutical companies and innovative biotechnology organizations around the globe.
The Homburger team advising Danaher comprised Stefan Blunschi, Heinz Schärer, Oriana Schöni, Marilena Balthasar and Paula Delissen (all Corporate / M&amp;A), Reto Heuberger and Philippe Weber (both Tax), Mariella Orelli (Litigation), Richard Stäuber (Competition) and Joel Fink (IP / IT).

Reto
Heuberger

Homburger advised the Kellenberger family on the reduction of its shareholding in Calida Holding AG

Homburger advised TowerBrook Capital Partners on its acquisition of IDAK Food Group

Homburger advised Danaher Corporation on its acquisition of Genedata AG

Transfer Stamp Duty for Intra-Group Intermediaries

Federal Council rejects exit tax

Yes to OECD/G20 Minimum Taxation

Akquisitionsstrukturierung aus steuerlicher Sicht

Private M&A 2025: Switzerland

Structuring Cross-border Transactions 2024

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Reto Heuberger

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Homburger advised the Kellenberger family on the reduction of its shareholding in Calida Holding AG

Homburger advised TowerBrook Capital Partners on its acquisition of IDAK Food Group

Homburger advised Danaher Corporation on its acquisition of Genedata AG

Transfer Stamp Duty for Intra-Group Intermediaries

Federal Council rejects exit tax

Yes to OECD/G20 Minimum Taxation

Akquisitionsstrukturierung aus steuerlicher Sicht

Private M&A 2025: Switzerland

Structuring Cross-border Transactions 2024

Join the Team

Reto Heuberger

Career

Languages

Bar Registration

Teams

Reto
Heuberger