Upcoming revision of the Swiss VAT Law – Understanding the potential impact of the new e-commerce rules

The Swiss Federal Council has confirmed that the partial revision of the Swiss VAT Law (rVATL), adopted by the Swiss Parliament in June 2023, will come into force on 1 January 2025. The revised law includes a wide range of changes, with the e-commerce rules one of the most significant.

According to the new e-commerce VAT rules, electronic platforms will be considered as "deemed suppliers" for all supplies of goods they facilitate, unless they meet specific conditions. In addition, all electronic platforms may be requested by the SFTA to provide information on sellers. This change will have an impact on all businesses engaged in e-commerce supply chains in or into Switzerland.

This blog is the second of a series of topical blogs that the Swiss Deloitte VAT team will be publishing over the coming months to explain the significant upcoming changes in more detail. Please stay tuned for more updates.

What are the current rules?

Currently when a so-called mail-order seller sells goods into the Swiss territory through an electronic platform acting as a direct representative (disclosed agent), the seller is considered as the supplier of the goods to the buyers.

If the goods are shipped from abroad to buyers on the Swiss territory, the mail-order seller has in principle no Swiss VAT obligations (importation by the buyers and no subordination held by the supplier). A deviation from this rule came into force in 2019, whereby the mail-order seller is deemed to perform supplies on the Swiss territory as soon as it exceeded the CHF 100,000 threshold of so-called “low-value goods” shipped from abroad to the Swiss territory. The mail-order seller must then register for Swiss VAT, act as importer for all goods and collect Swiss VAT on its local supplies regardless of whether they would qualify as low value goods.

Therefore the electronic platform itself, acting as direct representative, would not be considered part of the supply chain from a Swiss VAT standpoint and have no Swiss VAT obligations arising from the underlying supply of goods that it facilitated.

What will change in 2025?

The Swiss VAT Law revision will introduce (1) the “deemed supplier” concept for electronic platforms facilitating supplies of goods and (2) an obligation to provide information for all electronic platforms.

Electronic platforms are defined as any electronic interface allowing online direct interactions between different parties in the supply of goods or services.

            1. “Deemed supplier”

Electronic platforms facilitating supplies of goods by putting sellers and buyers in contact will be considered as “deemed suppliers” for all supplies of goods to the buyers unless one or several of the following conditions is met:

1. the platform is not directly or indirectly involved in ordering the goods;
2. the platform does not generate any turnover in direct connection with the transaction it has facilitated;
3. the platform only processes payments in connection with delivery;
4. the platform carries out only advertisements/promotion;
5. the platform merely redirects or transfers customers to other digital platforms where goods or services are offered.

Thus, if the platforms are qualified as deemed suppliers, then the supplies will be allocated to them, even if the platform is acting as direct representative as stated in Art. 20, Para.2 of the Swiss VAT Law.

When the platform is considered as the “deemed supplier”, the following rules would apply based on the rVATL and draft VAT Ordinance:

• the platform will be deemed as buying the goods from the sellers and reselling them to the buyers (VAT fiction);
• Swiss and foreign platforms will have to register for Swiss VAT if they meet their respective mandatory registration conditions;
• the platform will be liable to act as the importer for all goods on the Swiss territory, determine the VAT treatment, collect Swiss VAT on the sales and fulfil related reporting obligations. If the parties agree, sellers that are already Swiss VAT registered due to low-value goods supplies or hold a subordination licence may continue to act as importers instead of the platform;
• the platform will be entitled to use the import VAT deferment regime when the imports are not VAT exempt due to the low-value goods rules;
• the deemed supply from the seller to the platform will be either located outside Switzerland (for goods supplied from abroad) or VAT exempt with credit (for goods supplied from the Swiss territory). In both cases, no output Swiss VAT is due;
• the seller will still have a subsidiary liability towards the platform, since the platform relies on information from the seller regarding the goods that were delivered;
• the platform will not be allowed to apply the VAT margin scheme or the fictitious input VAT deduction scheme;
• restraining measures are foreseen if the platform fails to meet its Swiss VAT obligations, including import bans and destruction of goods at the border as last resort.

Electronic platforms that are, in light of the new provisions, already exceeding the thresholds for a mandatory VAT registration in Switzerland, or expect to exceed them in 2025, need to be compliant with the upcoming changes starting from 1st January 2025.

             2. Obligation to provide information

Electronic platforms will have the obligation to provide information upon request by the Swiss Federal Tax Administration (SFTA). This applies to all platforms, facilitating supplies of goods or services. The SFTA will be allowed notably to request which suppliers offer, via the platform, supplies requiring a Swiss VAT registration e.g., services in the transport and accommodation sectors, B2C electronic services, etc. for which the platform cannot be considered as a deemed supplier.

Deloitte’s view

Qualifying the electronic platforms as deemed suppliers will lead to major VAT operational changes in the e-commerce sector, impacting both electronic platforms and sellers active on Swiss territory.

Electronic platforms may have to register for VAT in Switzerland and those that are already VAT registered will have to act as the importer for goods shipped from abroad and collect Swiss VAT on all local supplies instead of the (Swiss or foreign) sellers using their interface. They will also need to ensure that they have sufficient information about the sellers and the underlying supplies in case of a request from the SFTA.

For sellers the new e-commerce rules may be an opportunity to cancel their current VAT registration in Switzerland.

It is therefore important that the electronic platforms and sellers using them align on the process as from 1st January 2025.

There are, however, practical questions that still need to be answered by the SFTA before going live in 2025, for example:

• Who will be liable for Swiss VAT in case of a chain transaction between multiple electronic platforms?
• What would be the VAT implications if the seller continues to act as the importer instead of the electronic platform? What would be the process if the platform acts as importer, but the seller has a subordination licence?
• How will the sellers recover input VAT in relation to local sales that are VAT exempt with credit?
• How and when will the subsidiary liability be applied?
• Which information may be requested by the SFTA (the supplier's name, the customer's address, the amount, the shipping address, etc.)?

We also expect some uncertainties where determining whether a platform qualifies as a "deemed" supplier, notably how the excluding conditions will be interpreted. Complex or mixed situations may also occur in practice (e.g., sellers selling goods through different electronic platforms, whereby some qualify as deemed suppliers and others not).

The SFTA guidelines update, which is expected to be released by the end of this year, should hopefully provide clarity on these matters.

Next steps

Electronics platforms must already assess the impact of the anticipated changes and notably whether they will be considered as “deemed suppliers” depending on their level of intervention in the supplies and interaction with the sellers and buyers. This fiction will indeed impact their current business model and require major enterprise resource planning implementations, website modifications, the setting up of new reporting and compliance procedures, etc. Deloitte will be happy to discuss with you the impacts on your business.

If you would like to discuss this topic, please do reach out to our key contacts below.

Authors

• Romy Mueller - Partner, Indirect Tax
  
• Constant Dimitriou - Director, Indirect Tax 
• Steven Torres - Assistant Manager, Indirect Tax
• Doryan Bronn - Consultant, Indirect Tax