[Senate Executive Report 105-10]
[From the U.S. Government Publishing Office]



105th Congress                                              Exec. Rept.
                                 SENATE

 1st Session                                                     105-10
_______________________________________________________________________


 
                    TAX CONVENTION WITH SWITZERLAND

                                _______
                                

                October 30, 1997.--Ordered to be printed

_______________________________________________________________________


          Mr. Helms, from the Committee on Foreign Relations,

                        submitted the following

                              R E P O R T

                    [To accompany Treaty Doc. 105-8]

    The Committee on Foreign Relations, to which was referred 
the Convention between the United States of America and the 
Swiss Confederation for the Avoidance of Double Taxation with 
Respect to Taxes on Income, signed at Washington, October 2, 
1996, together with a Protocol to the Convention, having 
considered the same, reports favorably thereon, with two 
declarations and one proviso, and recommends that the Senate 
give its advice and consent to ratification thereof, as set 
forth in this report and the accompanying resolution of 
ratification.


                                CONTENTS
                                                                   Page
  I. Purpose..........................................................1
 II. Background.......................................................2
III. Summary..........................................................2
 IV. Entry Into Force and Termination.................................3
  V. Committee Action.................................................3
 VI. Committee Comments...............................................4
VII. Budget Impact...................................................17
VIII.Explanation of Proposed Treaty and Proposed Protocol............17

 IX. Text of the Resolution of Ratification..........................65
  X. Appendix........................................................67

                               I. Purpose

    The principal purposes of the proposed income tax treaty 
between the United States and the Swiss Confederation 
(``Switzerland'') are to reduce or eliminate double taxation of 
income earned by residents of either country from sources 
within the other country and to prevent avoidance or evasion of 
the income taxes of the two countries. The proposed treaty is 
intended to continue to promote close economic cooperation 
between the two countries and to eliminate possible barriers to 
trade and investment caused by overlapping taxing jurisdictions 
of the two countries. It is intended to enable the two 
countries to cooperate in preventing avoidance and evasion of 
taxes.

                             II. Background

    The proposed treaty and proposed protocol both were signed 
on October 2, 1996. The United States and Switzerland also 
exchanged notes with an attached Memorandum of Understanding to 
provide clarification with respect to the application of the 
proposed treaty. \1\ The proposed treaty would replace the 
existing income tax treaty between the two countries that was 
signed in 1951.
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    \1\ The United States and Switzerland originally exchanged notes 
dated October 2, 1996, with an attached Memorandum of Understanding. 
The United States and Switzerland subsequently exchanged notes, dated 
April 8, 1997, and May 14, 1997. Attached to those subsequent notes was 
a revised Memorandum of Understanding (which is included in Treaty Doc. 
105-8). (The notes dated April 8, 1997, and May 14, 1997, are 
reproduced in the Appendix to this report.)
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    The proposed treaty, together with the proposed protocol, 
was transmitted to the Senate for advice and consent to its 
ratification on June 25, 1997 (see Treaty Doc. 105-8). The 
Senate Committee on Foreign Relations held a public hearing on 
the proposed treaty and proposed protocol on October 7, 1997.

                              III. Summary

     The proposed treaty (as supplemented by the proposed 
protocol) is similar to other recent U.S. income tax treaties, 
the 1996 U.S. model income tax treaty (``U.S. model''), \2\ and 
the model income tax treaty of the Organization for Economic 
Cooperation and Development (``OECD model''). However, the 
proposed treaty and proposed protocol contain certain 
substantive deviations from those documents.
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    \2\ The Treasury Department released the U.S. model on September 
20, 1996. A 1981 U.S. model treaty was withdrawn by the Treasury 
Department on July 17, 1992.
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     As in other U.S. tax treaties, the proposed treaty's 
objective of reducing or eliminating double taxation 
principally is achieved by each country agreeing to limit, in 
certain specified situations, its right to tax income derived 
from its territory by residents of the other country. For 
example, the proposed treaty contains provisions under which 
neither country generally will tax business income derived from 
sources within that country by residents of the other country 
unless the business activities in the taxing country are 
substantial enough to constitute a permanent establishment or 
fixed base (Articles 7 and 14). Similarly, the treaty contains 
``commercial visitor'' exemptions under which residents of one 
country performing personal services in the other country will 
not be required to pay tax in the other country unless their 
contact with the other country exceeds specified minimums 
(Articles 14, 15, and 17). The proposed treaty provides that 
dividends and certain capital gains derived by a resident of 
either country from sources within the other country may be 
taxed by both countries (Articles 10 and 13); however, the rate 
of tax that the source-country may impose on a resident of the 
other country on dividends generally will be limited by the 
proposed treaty (Article 10). The proposed treaty also provides 
that interest and royalties derived by a resident of either 
country generally will be exempt from tax in the other country 
(Articles 11, 12 and 21).
    In situations where the country of source retains the right 
under the proposed treaty to tax income derived by residents of 
the other country, the treaty generally provides for relief 
from the potential double taxation through the allowance by the 
country of residence of a tax credit for certain foreign taxes 
paid to the other country (Article 23).
    The proposed treaty contains the standard provision (the 
``saving clause'') contained in U.S. tax treaties that each 
country retains the right to tax its citizens and residents as 
if the treaty had not come into effect (Article 1). In 
addition, the proposed treaty contains the standard provision 
that it may not be applied to deny any taxpayer any benefits 
the taxpayer would be entitled to under the domestic law of a 
country or under any other agreement between the two countries 
(Article 28).
    The proposed treaty also contains a detailed limitation on 
benefits provision to prevent the inappropriate use of the 
treaty by third-country residents (Article 22).

                  IV. Entry Into Force and Termination

                          A. Entry into Force

    The proposed treaty is subject to ratification in 
accordance with the applicable procedures of each country, and 
instruments of ratification are to be exchanged as soon as 
possible. In general, the proposed treaty will enter into force 
upon the exchange of instruments of ratification. The present 
treaty generally ceases to have effect once the provisions of 
the proposed treaty take effect.
    With respect to taxes withheld at source, the proposed 
treaty will be effective for amounts paid or credited on or 
after the first day of the second month following entry into 
force. With respect to other taxes, the proposed treaty will be 
effective for taxable periods beginning on or after the first 
of January following entry into force.
    Where greater benefits would be available to a taxpayer 
under the present treaty than under the proposed treaty, the 
proposed treaty provides that the taxpayer may elect to be 
taxed under the present treaty (in its entirety) for the 
twelve-month period beginning on the date the proposed treaty 
would otherwise have effect.

                             B. Termination

    The proposed treaty will continue in force until terminated 
by either country. Either country may terminate the proposed 
treaty at any time by giving at least six months prior notice 
through diplomatic channels. A termination will be effective 
with respect to taxes withheld at source for amounts paid or 
credited on or after the first of January following the 
expiration of the six-month period. A termination will be 
effective with respect to other taxes for taxable periods 
beginning on or after the first of January following the 
expiration of the six-month period.

                          V. Committee Action

    The Committee on Foreign Relations held a public hearing on 
the proposed treaty with Switzerland and the related protocol 
(Treaty Doc. 105-8), as well as on other proposed tax treaties 
and protocols, on October 7, 1997. The hearing was chaired by 
Senator Hagel. The Committee considered these proposed treaties 
and protocols on October 8, 1997, and ordered the proposed 
treaty with Switzerland and the related protocol favorably 
reported by voice vote, with the recommendation that the Senate 
give its advice and consent to ratification of the proposed 
treaty and proposed protocol, subject to two declarations and a 
proviso.

                         VI. Committee Comments

    On balance, the Committee on Foreign Relations believes 
that the proposed treaty with Switzerland is in the interest of 
the United States and urges that the Senate act promptly to 
give advice and consent to ratification. However, the Committee 
has taken note of certain issues raised by the proposed treaty 
and believes that the following comments may be useful to 
Treasury Department officials in providing guidance on these 
matters should they arise in the course of future treaty 
negotiations.

                     A. Treatment of REIT Dividends

REITs in general

    Real Estate Investment Trusts (``REITs'') essentially are 
treated as conduits for U.S. tax purposes. The income of a REIT 
generally is not taxed at the entity level but is distributed 
and taxed only at the investor level. This single level of tax 
on REIT income is in contrast to other corporations, the income 
of which is subject to tax at the corporate level and is taxed 
again at the shareholder level upon distribution as a dividend. 
Hence, a REIT is like a mutual fund that invests in qualified 
real estate assets.
    An entity that qualifies as a REIT is taxable as a 
corporation. However, unlike other corporations, a REIT is 
allowed a deduction for dividends paid to its shareholders. 
Accordingly, income that is distributed by a REIT to its 
shareholders is not subject to corporate tax at the REIT level. 
A REIT is subject to corporate tax only on any income that it 
does not distribute currently to its shareholders. As discussed 
below, a REIT is required to distribute on a current basis the 
bulk of its income each year.
    In order to qualify as a REIT, an entity must satisfy, on a 
year-by-year basis, specific requirements with respect to its 
organizational structure, the nature of its assets, the source 
of its income, and the distribution of its income. These 
requirements are intended to ensure that the benefits of REIT 
status are accorded only to pooling of investment arrangements, 
the income of which is derived from passive investments in real 
estate and is distributed to the investors on a current basis.
    In order to satisfy the organizational structure 
requirements for REIT status, a REIT must have at least 100 
shareholders and not more than 50 percent (by value) of its 
shares may be owned by five or fewer individuals. In addition, 
shares of a REIT must be transferrable.
    In order to satisfy the asset requirements for REIT status, 
a REIT must have at least 75 percent of the value of its assets 
invested in real estate, cash and cash items, and government 
securities. In addition, diversification rules apply to the 
REIT's investment in assets other than the foregoing qualifying 
assets. Under these rules, not more than 5 percent of the value 
of its assets may be invested in securities of a single issuer 
and any such securities held may not represent more than 10 
percent of the voting securities of the issuer.
    In order to satisfy the source of income requirements, at 
least 95 percent of the gross income of the REIT generally must 
be from certain passive sources (e.g., dividends, interest, and 
rents). In addition, at least 75 percent of its gross income 
generally must be from certain real estate sources (e.g., real 
property rents, mortgage interest, and real property gains).
    Finally, in order to satisfy the distribution of income 
requirement, the REIT generally is required to distribute to 
its shareholders each year at least 95 percent of its taxable 
income for the year (excluding net capital gains). A REIT may 
retain 5 percent or less of its taxable income and all or part 
of its net capital gain.
    A REIT is subject to corporate-level tax only on any 
taxable income and net capital gains that the REIT retains. 
Under an available election, shareholders may be taxed 
currently on the undistributed capital gains of a REIT, with 
the shareholder entitled to a credit for the tax paid by the 
REIT with respect to the undistributed capital gains such that 
the gains are subject only to a single level of tax. 
Distributions from a REIT of ordinary income are taxable to the 
shareholders as a dividend, in the same manner as dividends 
from an ordinary corporation. Accordingly, such dividends are 
subject to tax at a maximum rate of 39.6 percent in the case of 
individuals and 35 percent in the case of corporations. In 
addition, capital gains of a REIT distributed as a capital gain 
dividend are taxable to the shareholders as capital gain. 
Capital gain dividends received by an individual will be 
eligible for preferential capital gain tax rates if the 
relevant holding period requirements are satisfied.

Foreign investors in REITs

    Nonresident alien individuals and foreign corporations 
(collectively, foreign persons) are subject to U.S. tax on 
income that is effectively connected with the foreign person's 
conduct of a trade or business in the United States, in the 
same manner and at the same graduated tax rates as U.S. 
persons. In addition, foreign persons generally are subject to 
U.S. tax at a flat 30-percent rate on certain gross income that 
is derived from U.S. sources and that is not effectively 
connected with a U.S. trade or business. The 30-percent tax 
applies on a gross basis to U.S.-source interest, dividends, 
rents, royalties, and other similar types of income. This tax 
generally is collected by means of withholding by the person 
making the payment of such amounts to a foreign person.
    Capital gains of a nonresident alien individual that are 
not connected with a U.S. business generally are subject to the 
30-percent withholding tax only if the individual is present in 
the United States for 183 days or more during the year. The 
United States generally does not tax foreign corporations on 
capital gains that are not connected with a U.S. trade or 
business. However, foreign persons generally are subject to 
U.S. tax on any gain from a disposition of an interest in U.S. 
real property at the same rates that apply to similar income 
received by U.S. persons. Therefore, a foreign person that has 
capital gains with respect to U.S. real estate is subject to 
U.S. tax on such gains in the same manner as a U.S. person. For 
this purpose, a distribution by a REIT to a foreign shareholder 
that is attributable to gain from a disposition of U.S. real 
property by the REIT is treated as gain recognized by such 
shareholder from the disposition of U.S. real property.
    U.S. income tax treaties contain provisions limiting the 
amount of income tax that may be imposed by one country on 
residents of the other country. Many treaties, like the 
proposed treaty, generally allow the source-country to impose 
not more than a 15-percent withholding tax on dividends paid to 
a resident of the other treaty country. In the case of real 
estate income, most treaties, like the proposed treaty, specify 
that income derived from, and gain from dispositions of, real 
property in one country may be taxed by the country in which 
the real property is situated without limitation. \3\ 
Accordingly, U.S. real property rental income derived by a 
resident of a treaty partner generally is subject to the U.S. 
withholding tax at the full 30-percent rate (unless the net-
basis taxation election is made), and U.S. real property gains 
of a treaty partner resident are subject to U.S. tax in the 
manner and at the rates applicable to U.S. persons.
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    \3\ The proposed treaty, like many treaties, allows the foreign 
person to elect to be taxed in the source-country on income derived 
from real property on a net basis under the source country's domestic 
laws.
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    Although REITs are not subject to corporate-level taxation 
like other corporations, distributions of a REIT's income to 
its shareholders generally are treated as dividends in the same 
manner as distributions from other corporations. Accordingly, 
in cases where no treaty is applicable, a foreign shareholder 
of a REIT is subject to the U.S. 30-percent withholding tax on 
ordinary income distributions from the REIT. In addition, such 
shareholders are subject to U.S. tax on U.S. real estate 
capital gain distributions from a REIT in the same manner as a 
U.S. person.
    In cases where a treaty is applicable, this U.S. tax on 
capital gain distributions from a REIT still applies. However, 
absent special rules applicable to REIT dividends, treaty 
provisions specifying reduced rates of tax on dividends apply 
to ordinary income dividends from REITs as well as to dividends 
from taxable corporations. As discussed above, the proposed 
treaty, like many U.S. treaties, reduces the U.S. 30-percent 
withholding tax to 15 percent in the case of dividends 
generally. Prior to 1989, U.S. tax treaties contained no 
special rules excluding dividends from REITs from these reduced 
rates. Therefore, under pre-1989 treaties such as the present 
treaty with Switzerland, REIT dividends are eligible for the 
same reductions in the U.S. withholding tax that apply to other 
corporate dividends.
    Beginning in 1989, U.S. treaty negotiators began including 
in treaties provisions excluding REIT dividends from the 
reduced rates of withholding tax generally applicable to 
dividends. Under treaties with these provisions such as the 
proposed treaty, REIT dividends generally are subject to the 
full U.S. 30-percent withholding tax. \4\
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    \4\ Many treaties, like the proposed treaty, provide a maximum tax 
rate of 15 percent in the case of REIT dividends beneficially owned by 
an individual who holds a less than 10 percent interest in the REIT.
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Analysis of treaty treatment of REIT dividends

    The specific treaty provisions governing REIT dividends 
were introduced beginning in 1989 because of concerns that the 
reductions in withholding tax generally applicable to dividends 
were inappropriate in the case of dividends from REITs. The 
reductions in the rates of source-country tax on dividends 
reflect the view that the full 30-percent withholding tax rate 
may represent an excessive rate of source-country taxation 
where the source-country already has imposed a corporate-level 
tax on the income prior to its distribution to the shareholders 
in the form of a dividend. In the case of dividends from a 
REIT, however, the income generally is not subject to 
corporate-level taxation.
    REITs are required to distribute their income to their 
shareholders on a current basis. The assets of a REIT consist 
primarily of passive real estate investments and the REIT's 
income may consist principally of rentals from such real estate 
holdings. U.S. source rental income generally is subject to the 
U.S. 30-percent withholding tax. Moreover, the United States's 
treaty policy is to preserve its right to tax real property 
income derived from the United States. Accordingly, the U.S. 
30-percent tax on rental income from U.S. real property is not 
reduced in U.S. tax treaties.
    If a foreign investor in a REIT were instead to invest in 
U.S. real estate directly, the foreign investor would be 
subject to the full 30-percent withholding tax on rental income 
earned on such property (unless the net-basis taxation election 
is made). However, when the investor makes such investment 
through a REIT instead of directly, the income earned by the 
investor is treated as dividend income. If the reduced rates of 
withholding tax for dividends apply to REIT dividends, the 
foreign investor in the REIT is accorded a reduction in U.S. 
withholding tax that is not available for direct investments in 
real estate.
    On the other hand, some argue that it is important to 
encourage foreign investment in U.S. real estate through REITs. 
In this regard, a higher withholding tax on REIT dividends 
(i.e., 30 percent instead of 15 percent) may not be fully 
creditable in the foreign investor's home country and the cost 
of the higher withholding tax therefore may discourage foreign 
investment in REITs. For this reason, some oppose the inclusion 
in U.S. treaties of the special provisions governing REIT 
dividends, arguing that dividends from REITs should be given 
the same treatment as dividends from other corporate entities. 
Accordingly, under this view, the 15-percent withholding tax 
rate generally applicable under treaties to dividends should 
apply to REIT dividends as well.
    This argument is premised on the view that investment in a 
REIT is not equivalent to direct investment in real property. 
From this perspective, an investment in a REIT should be viewed 
as comparable to other investments in corporate stock. In this 
regard, like other corporate shareholders, REIT investors are 
investing in the management of the REIT and not just its 
underlying assets. Moreover, because the interests in a REIT 
are widely held and the REIT itself typically holds a large and 
diversified asset portfolio, an investment in a REIT represents 
a very small investment in each of a large number of 
properties. Thus, the REIT investment provides diversification 
and risk reduction that are not easily replicated through 
direct investment in real estate.
    At the October 7, 1997 hearing on the proposed treaty (as 
well as other proposed treaties and protocols), the Treasury 
Department announced that it has modified its policy with 
respect to the exclusion of REIT dividends from the reduced 
withholding tax rates applicable to other dividends under 
treaties. The Treasury Department worked extensively with the 
staff of the Committee on Foreign Relations, the staff of the 
Joint Committee on Taxation, and representatives of the REIT 
industry in order to address the concern that the current 
treaty policy with respect to REIT dividends may discourage 
some foreign investment in REITs while maintaining a treaty 
policy that properly preserves the U.S. taxing jurisdiction 
over foreign direct investment in U.S. real property. The new 
policy is a result of significant cooperation among all parties 
to balance these competing considerations.
    Under this policy, REIT dividends paid to a resident of a 
treaty country will be eligible for the reduced rate of 
withholding tax applicable to portfolio dividends (typically, 
15 percent) in two cases. First, the reduced withholding tax 
rate will apply to REIT dividends if the treaty country 
resident beneficially holds an interest of 5 percent or less in 
each class of the REIT's stock and such dividends are paid with 
respect to a class of the REIT's stock that is publicly traded. 
Second, the reduced withholding tax rate will apply to REIT 
dividends if the treaty country resident beneficially holds an 
interest of 10 percent or less in the REIT and the REIT is 
diversified, regardless of whether the REIT's stock is publicly 
traded. In addition, the current treaty policy with respect to 
the application of the reduced withholding tax rate to REIT 
dividends paid to individuals holding less than a specified 
interest in the REIT will remain unchanged.
    For purposes of these rules, a REIT will be considered 
diversified if the value of no single interest in real property 
held by the REIT exceeds 10 percent of the value of the REIT's 
total interests in real property. An interest in real property 
will not include a mortgage, unless the mortgage has 
substantial equity components. An interest in real property 
also will not include foreclosure property. Accordingly, a REIT 
that holds exclusively mortgages will be considered to be 
diversified. The diversification rule will be applied by 
looking through a partnership interest held by a REIT to the 
underlying interests in real property held by the partnership. 
Finally, the reduced withholding tax rate will apply to a REIT 
dividend if the REIT's trustees or directors make a good faith 
determination that the diversification requirement is satisfied 
as of the date the dividend is declared.
    The Treasury Department will incorporate this new policy 
with respect to the treatment of REIT dividends in the U.S. 
model treaty and in future treaty negotiations. In addition, 
the Treasury Department has committed to use its best efforts 
to negotiate a protocol with Switzerland to amend the proposed 
treaty to incorporate this policy.
    The Committee believes that the new policy with respect to 
the applicability of reduced withholding tax rates to REIT 
dividends appropriately reflects economic changes since the 
establishment of the current policy. The Committee further 
believes that the new policy fairly balances competing 
considerations by extending the reduced rate of withholding tax 
on dividends generally to dividends paid by REITs that are 
relatively widely-held and diversified. The Committee 
encourages the Treasury Department to act expeditiously in 
meeting its commitment to negotiate a protocol with Switzerland 
that incorporates this new policy.

                       B. Exchange of Information

    One of the principal purposes of the proposed income tax 
treaty between the United States and Switzerland is to prevent 
avoidance or evasion of income taxes of the two countries. The 
exchange of information article of the proposed treaty is one 
of the primary vehicles used to achieve that purpose.
    The exchange of information article contained in the 
proposed treaty conforms in some respects to and deviates 
significantly in other respects from the corresponding articles 
of the U.S. and OECD models. As is true under these model 
treaties and the present treaty, under the proposed treaty a 
country is not required to carry out administrative measures at 
variance with the laws and administrative practices of either 
country, to supply information which is not obtainable under 
the laws or in the normal course of the administration of 
either country, or to supply information which discloses any 
trade, business, industrial, commercial, or professional secret 
or trade process, or information the disclosure of which is 
contrary to public policy.
    The proposed treaty deviates significantly from the 
corresponding articles of the U.S. and OECD models in the scope 
of the information exchange provision. Under the proposed 
treaty, information shall be exchanged as is necessary to carry 
out the purposes of the proposed treaty or for the prevention 
of tax fraud. The proposed treaty does not permit the exchange 
of information to carry out the provisions of domestic law of 
the parties to the treaty; such a provision is included in the 
corresponding articles of both the U.S. and OECD models. The 
omission of this provision means that under the proposed 
treaty, exchange of information will not be possible for the 
purpose of routine enforcement of the tax laws (except as is 
necessary to carry out the purposes of the proposed treaty or 
for the prevention of tax fraud). Consequently, the information 
exchange provision in the proposed treaty is significantly more 
restrictive than the corresponding provisions in either the 
model treaties or most other tax treaties into which the United 
States has entered in recent years.
    The proposed treaty does contain several provisions 
relating to exchanges of information for the prevention of tax 
fraud that are somewhat broader than the corresponding 
provision in the present treaty. First, the proposed treaty 
provides that the exchange of information is not restricted by 
the personal scope provisions of the proposed treaty. 
Consequently, information exchanges may occur with respect to 
persons otherwise outside the scope of the proposed treaty. 
There is no comparable provision in the present treaty. Second, 
the proposed treaty explicitly provides that authenticated 
copies of unedited original records or documents shall be 
provided when requested. The Treasury Department's Technical 
Explanation of the proposed treaty (hereinafter referred to as 
the ``Technical Explanation'') states that the Swiss Supreme 
Court, in interpreting the present treaty, limited the form in 
which information could be provided to reports and summaries of 
information. Third, the Memorandum of Understanding states that 
in cases of tax fraud, Swiss banking secrecy provisions do not 
hinder the gathering of documentary evidence from banks or its 
being provided to the United States pursuant to the proposed 
treaty.
    As part of its consideration of the proposed treaty, the 
Committee asked if the Treasury Department considers the 
exchange of information provisions of the proposed treaty to be 
sufficient to carry out the tax-avoidance purposes for which 
income tax treaties are entered into by the United States. The 
relevant portion of the Treasury Department's October 8, 1997 
letter \5\ responding to this inquiry is reproduced below:
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    \5\ Letter from Joseph H. Guttentag, International Tax Counsel, 
Treasury Department, to Senator Paul Sarbanes, Committee on Foreign 
Relations, October 8, 1997 (``October 8, 1997 Treasury Department 
letter'').

    Although the exchange of information provisions of the 
proposed treaty are not as broad as the U.S. Model provisions, 
they represent a significant improvement over those in the 
present treaty. . . . [T]he new treaty and Protocol contain a 
clear, broad definition of ``tax fraud'' that should lead to 
improved information exchange. The new treaty also provides 
that information will, where possible, be provided in a form 
that will make it possible for the information to be used in 
court proceedings. While these measures do not go as far as we 
would like, the improvement that they will allow in our 
exchange of information program with Switzerland should make 
the anti-avoidance provisions of the new treaty far more 
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effective than under the present treaty.

In addition, the Treasury Department noted both the constraints 
imposed by Swiss law on reaching a theoretically more desirable 
information exchange provision and the fact that the 
information exchange provision of the proposed treaty is more 
expansive than those of any other Swiss treaty.
    Although broader exchange of information provisions are 
desirable, the Committee understands the difficulty in 
achieving broader provisions given the constraints of Swiss 
law. Additionally, the Committee notes that the exchange of 
information provisions of the proposed treaty are somewhat 
improved over the comparable provisions of the present treaty. 
However, the Committee does not believe that the proposed Swiss 
treaty should be construed in any way as a precedent for other 
negotiations. The exchange of information provisions in 
treaties are central to the purposes for which tax treaties are 
entered into, and significant limitations on their effect, 
relative to the preferred U.S. tax treaty position, should not 
be accepted in negotiations with other countries that seek to 
have or to maintain the benefits of a tax treaty relationship 
with the United States.

                        C. Insurance Excise Tax

    The proposed treaty, unlike the present treaty, covers the 
U.S. excise tax on insurance premiums paid to foreign insurers. 
With the waiver of the excise tax on insurance premiums, for 
example, a Swiss insurer without a permanent establishment in 
the United States can collect premiums on policies covering a 
U.S. risk or a U.S. person free of the excise tax on insurance 
premiums. However, the tax is imposed to the extent that the 
risk is reinsured by the Swiss insurer with a person not 
entitled to the benefits of an income tax treaty providing 
exemption from the tax. This latter rule is known as the 
``anti-conduit'' clause.
    Such waivers of the excise tax have raised serious 
congressional concerns. For example, concern has been expressed 
over the possibility that such waivers may place U.S. insurers 
at a competitive disadvantage with respect to foreign 
competitors in U.S. markets if a substantial tax is not 
otherwise imposed (e.g., by the treaty partner country) on the 
insurance income of the foreign insurer (or, if the risk is 
reinsured, the reinsurer). Moreover, in such a case, a waiver 
of the tax does not serve the primary purpose of treaties to 
prevent double taxation, but instead has the undesirable effect 
of eliminating all tax on such income.
    The U.S.-Barbados and U.S.-Bermuda tax treaties each 
contained such a waiver as originally signed. In its report on 
the Bermuda treaty, the Committee expressed the view that those 
waivers should not have been included. The Committee stated 
that waivers should not be granted by Treasury in its future 
treaty negotiations without prior consultations with the 
appropriate committees of Congress. \6\ Congress subsequently 
enacted legislation to ensure the sunset of the waivers in the 
two treaties. The insurance excise tax also is waived in the 
treaty with the United Kingdom (without the so-called ``anti-
conduit rule''). The inclusion of such a waiver in that treaty 
has been followed by a number of legislative efforts to redress 
the perceived competitive imbalance created by the waiver.
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    \6\ Limited consultations took place in connection with the 
proposed treaty.
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    The proposed treaty waives imposition of the excise tax on 
insurance and reinsurance premiums paid to residents of 
Switzerland. The Committee understands that, unlike Bermuda and 
Barbados, Switzerland imposes substantial tax on the income, 
including insurance income, of its residents. Moreover, unlike 
in the case of the U.K. treaty, the waiver in the proposed 
treaty contains the anti-conduit clause.
    As part of its consideration of the proposed treaty, the 
Committee asked the Treasury Department whether the Swiss 
income tax imposed on Swiss insurance companies on insurance 
premiums results in a burden that is substantial in relation to 
the U.S. tax on U.S. insurance companies. The relevant portion 
of the October 8, 1997 Treasury Department letter responding to 
this inquiry is reproduced below:

  [T]he Treasury agrees to cover the federal excise tax on 
insurance premiums only when it determines that insurance 
companies resident in the treaty partner are subject to a 
substantial level of taxation. The Treasury studied Swiss 
insurance taxation very thoroughly, including meetings with 
outside experts and Swiss tax officials, before making the 
initial decision to cover the tax. Consultations were then held 
with Senate and House Committee staff members before a final 
decision was made. We believe that coverage, and thus, waiver, 
of the tax represents appropriate policy.

    In light of the inclusion in the proposed treaty of the 
anti-conduit clause and based on the assessment provided by the 
Treasury Department regarding the relative tax burdens of Swiss 
insurers and U.S. insurers, the Committee believes that the 
waiver of the excise tax for Swiss insurers is consistent with 
the criteria the Committee has articulated for such waivers. 
However, the Committee instructs the Treasury Department 
promptly to notify the Committee of any changes in laws or 
business practices that would have an impact on the tax burden 
of Swiss insurers relative to that of U.S. insurers.

            D. Income from the Rental of Ships and Aircraft

    The proposed treaty includes a provision found in the U.S. 
model and many U.S. income tax treaties under which profits 
from an enterprise's operation of ships or aircraft in 
international traffic are taxable only in the enterprise's 
country of residence. In the case of profits derived from the 
rental of ships and aircraft, the rule limiting the right to 
tax to the country of residence applies to such rental profits 
only if the rental profits are incidental to other profits from 
the operation of ships and aircraft in international traffic. 
Rental profits that are not incidental to other income from the 
international operation of ships and aircraft generally would 
be taxable by the source-country as business profits if such 
profits are attributable to a permanent establishment. The U.S. 
model and many other treaties provide that profits from the 
rental of ships and aircraft operated in international traffic 
are taxable only in the country of residence, without requiring 
that the rental profits be incidental to income of the 
recipient from the operation of ships and aircraft. Under the 
proposed treaty, unlike under the U.S. model, an enterprise 
that engages only in the rental of ships and aircraft, but does 
not engage in the operation of ships and aircraft, would not be 
eligible for the rule limiting the right to tax income from 
operations in international traffic to the enterprise's country 
of residence.
    In addition, the provisions in the U.S. model and many 
other U.S. income tax treaties that allow profits from an 
enterprise's operation of ships or aircraft in international 
traffic to be taxed only in the enterprise's country of 
residence generally apply also to income from the use, 
maintenance, or rental of containers used in international 
traffic. The provision in the proposed treaty does not cover 
income from containers. Accordingly, under the proposed treaty, 
income from containers used in international traffic would be 
taxable by the source-country as business profits if such 
income is attributable to a permanent establishment.
    As part of its consideration of the proposed treaty, the 
Committee asked the Treasury Department about the treatment of 
income from rentals of ships, aircraft, and containers under 
the proposed treaty. The relevant portion of the October 8, 
1997 Treasury Department letter responding to this inquiry is 
reproduced below:

    The rule in the Swiss treaty follows the OECD Model, rather 
than the U.S. Model. This reflects Swiss policy. . . . [I]ncome 
from the rental of ships, aircraft and containers that is not 
incidental to the operation of ships and aircraft in 
international traffic is, under the proposed treaty, treated as 
business profits, not as shipping income taxable only in the 
residence of the recipient of the income. Because of this 
characterization, such income is subject to tax in the source- 
country only when the rental income is attributable to a 
permanent establishment in the source-country, and, if taxable, 
may be taxed only on a net basis. As a general matter, rental 
contracts will be structured so that the income will not be 
attributable to a permanent establishment. Thus, this rule 
differs substantially from the rule in some other treaties, 
such as Indonesia, where non-incidental income from the leasing 
of containers was treated as royalties and subject to a 10% 
gross basis tax. While this rule is not preferred U.S. policy, 
as part of a negotiated agreement, it provides a reasonable and 
practical solution, taking into account all applicable Swiss 
tax rules.

    In the past, the Committee has expressed concern about the 
anti-competitive effects of a provision, such as the provision 
in the U.S.-Indonesia treaty, that treats non-incidental income 
from container leasing as royalty income subject to a source-
country withholding tax. The Committee understands that under 
the proposed treaty income derived by a resident of one country 
from the rental of ships, aircraft, and containers would be 
subject to tax in the other country only if such income is 
attributable to a permanent establishment maintained by the 
resident in the other country. Although the circumstances under 
which source-country taxation will apply to income from the 
rental of ships, aircraft, and containers are more limited in 
the proposed Swiss treaty than in the Indonesian treaty, the 
Committee continues to reject the notion that a justifiable 
distinction can be made between container leasing income and 
income derived from other international transportation 
activities. The Committee once again urges the Treasury 
Department to include only the U.S. model provision with 
respect to such income in all future treaties.

                           E. Treaty Shopping

    The proposed treaty, like many U.S. income tax treaties, 
generally limits treaty benefits for treaty country residents 
so that only those residents with a sufficient nexus to a 
treaty country will receive treaty benefits. Although the 
proposed treaty generally is intended to benefit residents of 
Switzerland and the United States only, residents of third 
countries sometimes attempt to use a treaty to obtain treaty 
benefits. This is known as treaty shopping. Investors from 
countries that do not have tax treaties with the United States, 
or from countries that have not agreed in their tax treaties 
with the United States to limit source-country taxation to the 
same extent that it is limited in another treaty may, for 
example, attempt to reduce the tax on interest on a loan to a 
U.S. person by lending money to the U.S. person indirectly 
through a country whose treaty with the United States provides 
for a lower rate of withholding tax on interest. The third-
country investor may attempt to do this by establishing in that 
treaty country a subsidiary, trust, or other entity which then 
makes the loan to the U.S. person and claims the treaty 
reduction for the interest it receives.
    The anti-treaty-shopping provision in the proposed treaty 
is similar to anti-treaty-shopping provisions in the Internal 
Revenue Code (``Code'') (as interpreted by Treasury 
regulations) and in the U.S. model. The provision also is 
similar to the anti-treaty-shopping provision in several recent 
treaties. In particular, the proposed treaty provision 
resembles the anti-treaty-shopping provisions contained in the 
1993 U.S. treaty with the Netherlands and the 1995 U.S. treaty 
with France. The degree of detail included in this provision is 
notable in itself. The proliferation of detail may reflect, in 
part, a diminution in the scope afforded the IRS and the courts 
to resolve interpretive issues adversely to a person attempting 
to claim the benefits of a treaty; this diminution represents a 
bilateral commitment, not alterable by developing internal U.S. 
tax policies, rules, and procedures, unless enacted as 
legislation that would override the treaty. (In contrast, the 
IRS generally is not limited under the proposed treaty in its 
discretion to allow treaty benefits under the anti-treaty-
shopping rules.) The detail in the proposed treaty does 
represent added guidance and certainty for taxpayers that may 
be absent under treaties that may have somewhat simpler and 
more flexible provisions.
    The anti-treaty-shopping provisions in the proposed treaty 
differ from those in the Code and other treaties in a number of 
respects.
    The proposed treaty is similar to other U.S. treaties and 
the branch tax rules in affording treaty benefits to certain 
publicly traded companies. In comparison with the U.S. branch 
tax rules, the proposed treaty is more lenient. The proposed 
treaty allows benefits to be afforded to a company that is more 
than 50 percent owned, directly or indirectly, by one or more 
qualifying publicly traded corporations, while the branch tax 
rules allow benefits to be afforded only to a wholly-owned 
subsidiary of a publicly traded company.
    The proposed treaty also provides mechanical rules under 
which so-called ``derivative benefits'' are afforded. \7\ Under 
these rules, an entity is afforded certain benefits based in 
part on its ultimate ownership of at least 70 percent by 
residents of European Union, European Economic Area, or North 
American Free Trade Agreement (``NAFTA'') countries who would 
be entitled to treaty benefits that are as favorable under an 
existing treaty with the third country. In addition, the 
Memorandum of Understanding effectively expands this derivative 
benefits provision. Under this expansion, an entity generally 
is entitled to all benefits of the treaty based in part on its 
ultimate ownership of at least 95 percent by seven or fewer 
residents of European Union, European Economic Area, or NAFTA 
countries who would be entitled to treaty benefits that are as 
favorable under an existing treaty with the third country. The 
U.S. model does not contain a derivative benefits provision.
---------------------------------------------------------------------------
    \7\ The U.S. income tax treaties with the Netherlands, Jamaica and 
Mexico also provide similar benefits.
---------------------------------------------------------------------------
    Taken as a whole, some may argue that the derivative 
benefits provision of the proposed treaty is more generous to 
taxpayers claiming U.S. treaty benefits than the derivative 
benefits provisions of any U.S. tax treaties currently in 
effect. For example, while most other treaties to which the 
United States is a party generally allow derivative benefits 
only with respect to certain income (e.g., interest, dividends 
or royalties), the proposed treaty allows a taxpayer to claim 
derivative benefits with respect to the entire treaty. \8\ In 
addition, unlike most existing treaties, the proposed treaty, 
as supplemented by the Memorandum of Understanding, does not 
require any same-country ownership of a Swiss company claiming 
treaty benefits. \9\ In other words, a Swiss entity that is 
100-percent owned by certain third-country residents and that 
does not otherwise have a nexus with Switzerland (e.g., by 
engaging in an active trade or business there), may be entitled 
to claim benefits under the proposed treaty.
---------------------------------------------------------------------------
    \8\ The U.S.-Jamaica tax treaty is the only other existing treaty 
that allows a taxpayer to claim derivative benefits with respect to the 
entire treaty.
    \9\ Article 26(4)(a) of the U.S.-Netherlands treaty, for example, 
requires more than 30-percent Dutch ownership of the entity claiming 
derivative benefits and more than 70-percent European Union ownership 
of such entity. On the other hand, the 1995 U.S.-Canada protocol 
permits a company to claim certain treaty benefits under the derivative 
benefits provision without any same country ownership; however, the 
benefits that may be so obtained are limited to reduced withholding 
rates for dividends, interest and royalties.
---------------------------------------------------------------------------
    The proposed treaty includes a special rule designed to 
prevent the proposed treaty from reducing or eliminating U.S. 
tax on income of a Swiss resident in a case where no other 
substantial tax is imposed on that income (the so-called 
``triangular cases''). This is necessary because a Swiss 
resident may in some cases be wholly or partially exempt from 
Swiss tax on foreign (i.e., non-Swiss) income. The special rule 
applies generally if the combined Swiss and third-country 
taxation of U.S.-source income derived by a Swiss enterprise 
and attributable to a permanent establishment in the third 
country is less than 60 percent of the tax that would be 
imposed if the Swiss enterprise earned the income in 
Switzerland.
    Under the special rule, the United States is permitted to 
tax dividends, interest, and royalties paid to the third-
country permanent establishment at the rate of 15 percent. In 
addition, under the special rule, the United States is 
permitted to tax other types of income without regard to the 
proposed treaty. The special rule generally does not apply if 
the U.S. income is derived in connection with, or is incidental 
to, an active trade or business in the third country. The 
special rule is similar to a provision of the 1993 protocol to 
the U.S.-Netherlands tax treaty and a provision of the U.S.-
France treaty. This special rule for triangular cases is not 
included in the U.S. model.
    The U.S.-France treaty provides a further exception from 
the application of the special rule for the triangular case if 
the third-country income is subject to taxation by either the 
United States or France under the controlled foreign 
corporation rules of either country. \10\ Although the proposed 
treaty does not provide an explicit controlled foreign 
corporation exception, the Committee expects that the U.S. 
competent authority would grant relief under the proposed 
treaty in a case where the U.S.-source income subject to the 
special rule ultimately is included in a U.S. shareholder's 
income under the subpart F rules. The Committee believes that 
either an explicit controlled foreign corporation exception 
should have been included in the text of the proposed treaty, 
as in the French treaty and the proposed treaties with Austria 
and South Africa, or the availability of such relief should 
have been described in the Technical Explanation of the 
proposed treaty, as in the case of the proposed treaty with 
Luxembourg.
---------------------------------------------------------------------------
    \10\ In the case of the United States, these provisions are 
contained in sections 951-964 of the Code and are referred to as the 
``subpart F'' rules.
---------------------------------------------------------------------------
    The practical difference between the proposed treaty tests 
and the corresponding tests in other treaties will depend upon 
how they are interpreted and applied. Given the relatively 
bright line rules provided in the proposed treaty, the range of 
interpretation under it may be fairly narrow.
    As part of its consideration of the proposed treaty, the 
Committee asked the Treasury Department about the sufficiency 
of the anti-treaty-shopping provision in the proposed treaty. 
The relevant portion of the October 8, 1997 Treasury Department 
letter responding to this inquiry is reproduced below:

    Like our Netherlands treaty, there is considerable detail 
in the Swiss limitation on benefits provisions and Memorandum 
of Understanding. The Swiss wanted this to be able to provide a 
measure of certainty to taxpayers as to whether they would be 
entitled to treaty benefits. Many of the aspects of the Swiss 
provision, such as derivative benefits, we believed were 
necessary to avoid setting up a situation where potential 
investors could invest in the United States through some U.S. 
treaty partners without violating the limitation on benefits 
provisions, but could not do so through Switzerland. A company 
that satisfies the derivative benefits provision will be 
entitled to all the benefits of the treaty, just as in the 
U.S.-France treaty. The Swiss provision contains a ``triangular 
case'' rule, not found in the U.S. Model, because this is 
necessary for countries that exempt certain third- country 
permanent establishment profits. Some of the differences 
between the Swiss anti-treaty-shopping provisions and the 
standard U.S. Model provisions grew out of the fact that 
Switzerland has had its own anti-treaty-shopping rules since 
1962, and we sought in negotiating the treaty provisions to 
mesh their system with ours. We believe that the Swiss treaty 
provision will deal appropriately with potential treaty 
shoppers.

    The Committee believes that the United States should 
maintain its policy of limiting treaty-shopping opportunities 
whenever possible. The Committee further believes that, in 
exercising any latitude Treasury has with respect to the 
operation of a treaty, the treaty rules should be applied to 
deter treaty-shopping abuses. On the other hand, the Committee 
recognizes that implementation of the detailed tests for treaty 
shopping set forth in the proposed treaty may raise factual, 
administrative, or other issues that cannot currently be 
foreseen. The Committee emphasizes that the provisions in the 
proposed treaty must be implemented so as to serve as an 
adequate tool for preventing possible treaty-shopping abuses in 
the future.

              F. Arbitration of Competent Authority Issues

    The proposed treaty would allow for a binding arbitration 
procedure, if agreed by both competent authorities and the 
taxpayer or taxpayers involved, for the resolution of those 
disputes in the interpretation or application of the proposed 
treaty that are within the jurisdiction of the competent 
authorities to resolve. The competent authorities could release 
to the arbitration board such information as is necessary to 
carry out the arbitration procedure. The members of the 
arbitration board are subject to the limitations on disclosure 
contained in the exchange of information article of the 
proposed treaty. This provision would take effect only after an 
exchange of diplomatic notes between the United States and 
Switzerland.
    Generally, the jurisdiction of the competent authorities 
under the proposed treaty is as broad as it is under any U.S. 
income tax treaties. For example, the competent authorities are 
empowered (in this as in other treaties) to agree on the 
attribution of income, deductions, credits, or allowances of an 
enterprise to a permanent establishment. They may agree on the 
allocation of income, deductions, credits, or allowances 
between associated enterprises and others under the provisions 
of Article 9 (Associated Enterprises), which is the treaty 
analogue of Code section 482. They also may agree on the 
characterization of particular items of income, on the common 
meaning of a term, and on the application of procedural aspects 
of internal law. Finally, the competent authorities may agree 
on the elimination of double taxation in cases not provided for 
in the proposed treaty. According to the Technical Explanation 
with respect to this procedure, agreements reached by the 
competent authorities need not conform to the internal law 
provisions of either treaty country.
    As part of its consideration of the proposed treaty, the 
Committee asked the Treasury Department about the 
appropriateness of the arbitration provision contained in the 
proposed treaty. The relevant portion of the October 8, 1997 
Treasury Department letter responding to this inquiry is 
reproduced below:

    Treasury recognizes that there has been little practical 
experience with arbitration of tax treaty disputes and this 
creates some uncertainty about how well arbitration would work. 
For this reason, Treasury does not advocate the inclusion of 
arbitration provisions in new treaties. However, if the treaty 
partner is strongly interested in an arbitration provision, we 
are willing to include such a provision in a new treaty with 
the proviso that it cannot be implemented until the treaty 
partners have exchanged diplomatic notes to that effect. This 
provides the opportunity to wait until more experience has been 
gained with arbitration and with the treaty partner before 
deciding whether the implementation of such a provision is 
desirable.

    The Committee continues to believe that the tax system 
potentially may have much to gain from use of a procedure, such 
as arbitration, in which independent experts can resolve 
disputes that otherwise may impede efficient administration of 
the tax laws. However, the Committee also believes that the 
appropriateness of such a clause in a future treaty depends 
strongly on the other party to the treaty, and on the 
experience that the competent authorities have under the 
arbitration provision in the German treaty. The Committee 
understands that to date there have been no arbitrations of 
competent authority cases under the German treaty, and few tax 
arbitrations outside the context of that treaty. The Committee 
believes that it is appropriate to have conditioned the 
effectiveness of the arbitration provision in the proposed 
treaty on subsequent action which should occur only after 
review of future developments in this evolving area of 
international tax administration.

                           VII. Budget Impact

    The Committee has been informed by the staff of the Joint 
Committee on Taxation that the proposed treaty is estimated to 
cause a negligible change in fiscal year Federal budget 
receipts during the 1998-2007 period.

       VIII. Explanation of Proposed Treaty and Proposed Protocol

    A detailed, article-by-article explanation of the proposed 
treaty between the United States and Switzerland, as 
supplemented by the proposed protocol, is presented below. In 
the explanation below, the understandings and interpretations 
reflected in the Memorandum of Understanding are covered 
together with the relevant articles of the proposed treaty.

Article 1. Personal Scope

    The personal scope article describes the persons who may 
claim the benefits of the proposed treaty. The proposed treaty 
generally applies to residents of the United States and 
residents of Switzerland. However, other articles of the 
proposed treaty provide for specific expansions of this scope 
to persons that are residents of neither the United States nor 
Switzerland for purposes of such articles (e.g., Article 24 
(Non-Discrimination) and Article 26 (Exchange of Information)). 
The determination of whether a person is a resident of the 
United States or Switzerland is made under the provisions of 
Article 4 (Resident).
    Like all U.S. income tax treaties, the proposed treaty is 
subject to a ``saving clause.'' The saving clause in the 
proposed treaty is drafted unilaterally to apply only to the 
United States. Under this clause, with specific exceptions 
described below, the proposed treaty is not to affect the U.S. 
taxation of its residents or its citizens. By reason of this 
saving clause, unless otherwise specifically provided in the 
proposed treaty, the United States will continue to tax its 
citizens who are residents of Switzerland as if the treaty were 
not in force. Similarly, the United States will continue to tax 
persons that are treated as U.S. residents under U.S. tax law 
as if the treaty were not in force, unless such persons are 
treated as residents of Switzerland under the treaty tie-
breaker rules governing dual residents provided in Article 4 
(Resident). The term ``residents'' includes corporations and 
other entities as well as individuals.
    The proposed treaty contains a provision under which the 
saving clause (and therefore the U.S. jurisdiction to tax) 
applies to former U.S. citizens. Under the U.S. model, the 
saving clause applies to both former citizens and former long-
term residents. The Code provides special rules for the 
imposition of U.S. income tax on former U.S. citizens for a 
period of ten years following their loss of U.S. citizenship. 
The Health Insurance Portability and Accountability Act of 1996 
extended the special income tax rules for former U.S. citizens 
to apply also to certain former long-term residents of the 
United States. The proposed treaty provision reflects the reach 
of the U.S. tax jurisdiction pursuant to these special rules 
prior to its extension to former U.S. long-term residents. 
Accordingly, the saving clause in the proposed treaty does not 
permit the United States to impose tax on former U.S. long-term 
residents who otherwise would be subject to the special income 
tax rules contained in the Code.
    Exceptions to the saving clause are provided for the 
following benefits conferred by the United States pursuant to 
the proposed treaty: the provision for correlative adjustments 
to the profits of an enterprise following an adjustment by 
Switzerland of the profits of a related enterprise (Article 9, 
paragraph 2); the coordination of the timing of gain 
recognition with respect to certain cross-border transactions 
(Article 13, paragraphs 6 and 7); the provisions for relief 
from double taxation (Article 23); the non-discrimination rules 
(Article 24); and the mutual agreement procedures (Article 25). 
These exceptions to the saving clause allow the provision of 
the enumerated benefits to citizens and residents of the United 
States, without regard to U.S. internal law.
    In addition, exceptions from the saving clause are provided 
for certain benefits conferred by the United States pursuant to 
the proposed treaty, but only in the case of an individual who 
neither is a U.S. citizen nor has immigrant status in the 
United States. Under this rule, the specified benefits under 
the proposed treaty are available to an individual who spends 
enough time in the United States to be taxed as a U.S. resident 
under Code section 7701(b), provided that the individual has 
not acquired U.S. immigrant status (i.e., is not a green-card 
holder). The following benefits are subject to this rule: the 
exemption from U.S. tax on compensation from government service 
to Switzerland (Article 19, paragraphs 1 and 2); the exemption 
from U.S. tax on certain income received by temporary visitors 
who are students or trainees (Article 20); the special rules 
applicable to diplomatic agents and consular officers (Article 
27); and the exemption from U.S. tax on certain contributions 
to a pension or other retirement arrangement (Article 28, 
paragraph 4).

Article 2. Taxes Covered

    The proposed treaty generally applies to the income taxes 
of the United States and Switzerland. As discussed below, the 
proposed treaty specifies the particular covered taxes of each 
country. However, the non-discrimination rules of Article 24 
apply to taxes of all kinds imposed by either country or its 
political subdivisions or local authorities.
    In the case of Switzerland, the proposed treaty, like the 
present treaty, covers the federal, cantonal, and communal 
taxes on income. The proposed treaty applies to such income 
taxes regardless of whether they are imposed on total income, 
earned income, income from property, business profits, or some 
other measure of income. The proposed treaty does not cover any 
Swiss taxes on capital.
    In the case of the United States, the proposed treaty, like 
the present treaty, applies to the Federal income taxes imposed 
by the Code. The proposed protocol contains a specific 
exclusion for U.S. social security taxes (but not for the 
income taxes on social security benefits). Like the U.S. model 
and the present treaty, but unlike some other U.S. income tax 
treaties in force, the proposed treaty applies to the 
accumulated earnings tax and the personal holding company tax. 
In addition, the proposed treaty applies to the U.S. excise 
taxes imposed on insurance premiums paid to foreign insurers 
and the U.S. excise tax imposed with respect to private 
foundations. The present treaty does not apply to any excise 
taxes.
    The proposed treaty applies to the excise taxes on 
insurance premiums paid to foreign insurers only to the extent 
that the risks covered by such premiums are not reinsured with 
a person that is not entitled to an exemption from such taxes 
either under the proposed treaty or under any other treaty. 
Because the insurance excise taxes are covered taxes under the 
proposed treaty, Swiss insurers generally are not subject to 
the U.S. excise taxes on insurance premiums for insuring U.S. 
risks. The excise taxes continue to apply, however, when a 
Swiss insurer reinsures a policy it has written on a U.S. risk 
with a foreign reinsurer that is not entitled to a similar 
exemption under this or a different tax treaty. Because the 
present treaty does not cover excise taxes, the U.S. insurance 
excise taxes may be imposed on Swiss insurers under the present 
treaty.
    The proposed treaty also contains a provision generally 
found in U.S. income tax treaties (including the present 
treaty) that applies the treaty to any identical or 
substantially similar taxes that either country may 
subsequently impose. The proposed treaty obligates the 
competent authority of each country to notify the competent 
authority of the other country of any significant changes in 
its internal tax laws. Unlike the U.S. model, the proposed 
treaty does not specifically obligate the competent authorities 
to notify each other of significant changes in other laws 
affecting their obligations under the proposed treaty or of any 
official published material regarding the application of the 
proposed treaty.

Article 3. General Definitions

    This article provides definitions of terms used in the 
proposed treaty that apply for all purposes of the proposed 
treaty, unless the context requires otherwise. These 
definitions generally are consistent with the definitions 
contained in the U.S. model. In addition, certain terms are 
defined in the articles in which such terms are used.
    The term ``person'' includes an individual, a partnership, 
a company, an estate, a trust and any other body of persons. A 
``company'' is any body corporate or any entity which is 
treated as a body corporate for tax purposes under the laws of 
the country in which it is organized.
    An ``enterprise of a Contracting State'' is defined as an 
enterprise carried on by a resident of that country. Similarly, 
an ``enterprise of the other Contracting State'' is defined as 
an enterprise carried on by a resident of the other Contracting 
State. The proposed treaty does not define the term 
``enterprise.'' The Technical Explanation states that it is 
understood to mean any activity or set of activities that 
constitutes a trade or business.
    In the case of the United States, the term ``national'' 
means U.S. citizens and all legal persons, partnerships, and 
associations deriving their status as such from the laws in 
force in the United States. In the case of Switzerland, the 
term ``national'' means all individuals possessing Swiss 
nationality and all legal persons, partnerships, and 
associations deriving their status as such from the laws in 
force in Switzerland.
    The term ``international traffic'' means any transport by a 
ship or aircraft, other than transport solely between two 
points within the other country. The Technical Explanation 
states that transport that constitutes international traffic 
includes any portion of the transport that is between two 
points within the other country, even if the internal portion 
of the transport involves a transfer to a land vehicle or is 
handled by an independent contractor (provided that the 
original bills of lading include such portion of the 
transport).
    The Swiss competent authority is the Director of Federal 
Tax Administration or his authorized representative. The U.S. 
competent authority is the Secretary of the Treasury or his 
delegate. In fact, the U.S. competent authority function has 
been delegated to the Commissioner of Internal Revenue, who has 
redelegated the authority to the Assistant Commissioner 
(International) of the IRS. On interpretative issues, the 
latter acts with the concurrence of the Associate Chief Counsel 
(International) of the IRS.
    The term ``Switzerland'' means the Swiss Confederation.
    The term ``United States'' means the United States of 
America, but does not include Puerto Rico, the Virgin Islands, 
Guam or any other U.S. possession or territory.
    The proposed treaty also provides that, unless the context 
otherwise requires or the competent authorities of the two 
countries agree to a common meaning, all terms not defined in 
the treaty are to have the meanings which they have under the 
tax laws of the country whose tax is being applied. The 
Technical Explanation states that a meaning of a term provided 
under the tax laws of a country will take precedence over a 
meaning of such term under other laws of the country.

Article 4. Resident

    The assignment of a country of residence in a treaty is 
important because the benefits of the treaty generally are 
available only to a resident of one of the treaty countries as 
that term is defined in the treaty. Furthermore, double 
taxation often is avoided by the assignment of a single treaty 
country as the country of residence when, under the internal 
laws of the treaty countries, a person is a resident of both. 
The present treaty does not include a definition of 
``resident.''
    Under U.S. law, residence of an individual is important 
because a resident alien is taxed on worldwide income, while a 
nonresident alien is taxed only on certain U.S.-source income 
and on income that is effectively connected with a U.S. trade 
or business. An individual who spends substantial time in the 
United States in any year or over a three-year period generally 
is treated as a U.S. resident (Code sec. 7701(b)). A permanent 
resident for immigration purposes (i.e., a green-card holder) 
also is treated as a U.S. resident. Under the Code, a company 
is domestic, and therefore taxable on its worldwide income, if 
it is organized in the United States or under the laws of the 
United States, a State, or the District of Columbia.
    The proposed treaty generally defines the term ``resident 
of a Contracting State'' to mean any person who, under the laws 
of that country, is liable to tax therein by reason of his or 
her domicile, residence, nationality, place of management, 
place of incorporation, or any other criterion of a similar 
nature. Although citizenship is not specified as a criterion of 
residence, nationality is so specified and is defined in 
Article 3 (General Definitions) to mean citizenship in the case 
of the United States.
    A U.S. citizen or green-card holder who is not a resident 
of Switzerland is treated as a U.S. resident under the proposed 
treaty only if the individual has a substantial presence, 
permanent home, or habitual abode in the United States. Unlike 
under the U.S. model, citizenship alone does not establish 
residence. As a result, U.S. citizens residing overseas are not 
necessarily entitled to the benefits of the proposed treaty as 
U.S. residents. In the case of a U.S. citizen or green-card 
holder who is also a resident of Switzerland, such individual's 
residence is determined under the treaty tie-breaker rule 
described below.
    The proposed protocol provides that if a Swiss resident 
makes an election to be treated as a U.S. resident in order to 
file a joint U.S. income tax return with his or her spouse (who 
is a U.S. citizen or resident), such individual will continue 
to be treated as a resident of Switzerland, but also will be 
subject to tax as a U.S. resident. Accordingly, such an 
individual will be treated under the proposed treaty in the 
same manner as a U.S. citizen who is a Swiss resident.
    The government of a treaty country, a political subdivision 
or local authority thereof, or any agency or instrumentality of 
such government, subdivision, or authority is considered to be 
a resident of that country. The Memorandum of Understanding 
provides that it is understood that the term ``government'' 
includes any body that constitutes a governing authority of a 
treaty country or political subdivision, provided that the net 
earnings of the governing authority are credited to its own 
account or other accounts of the treaty country or political 
subdivision and no portion of such net earnings inure to the 
benefit of any private person. The Memorandum of Understanding 
further provides that the term ``government'' includes a 
corporation that is not engaged in commercial activities and 
that is wholly owned directly or indirectly by a treaty country 
or political subdivision; however, this rule applies only if 
the corporation is organized under the laws of the treaty 
country or political subdivision, its earnings are credited to 
its own account or to an account of the treaty country or 
political subdivision, and its assets vest in the treaty 
country or political subdivision upon dissolution. Finally, the 
Memorandum of Understanding provides that the term 
``government'' includes a pension trust of a treaty country or 
political subdivision that does not engage in commercial 
activities and that is established and operated exclusively to 
provide pension benefits to employees or former employees of 
the treaty country or political subdivision. This is consistent 
with the definition contained in Code section 892.
    Special rules apply to treat as residents of a treaty 
country certain organizations that generally are exempt from 
tax in that country. Under these rules, pension trusts and any 
other organizations established in a treaty country and 
maintained exclusively to administer or provide pension, 
retirement or employee benefits are treated as residents of 
such country if they are established or sponsored by a person 
resident in such country. Similarly, non-profit organizations 
established and maintained in a treaty country for religious, 
charitable, educational, scientific, cultural, or other public 
purposes are treated as residents of such country.
    A special rule also is provided for partnerships, estates 
and trusts. A partnership, estate, or trust is treated as a 
resident of a treaty country only to the extent that income 
derived by such entity is subject to tax, either in the 
entity's hands or in the hands of its partners or 
beneficiaries, in such country in the same manner as income of 
a resident of the country.
    The term ``resident of a Contracting State'' does not 
include any person who is liable to tax in that country in 
respect only of income from sources in that country.
    The proposed treaty provides a set of ``tie-breaker'' rules 
to determine residence in the case of an individual who, under 
the basic residence rules, would be considered to be a resident 
of both countries. Such a dual resident individual is deemed to 
be a resident of the country in which he or she has a permanent 
home available. If the individual has a permanent home in both 
countries, the individual's residence is deemed to be the 
country with which his or her personal and economic relations 
are closer (i.e., the ``center of vital interests''). If the 
country in which the individual has his or her center of vital 
interests cannot be determined, or if the individual does not 
have a permanent home available in either country, such 
individual is deemed to be a resident of the country in which 
he or she has an habitual abode. If the individual has an 
habitual abode in both countries or in neither country, the 
individual is deemed to be a resident of the country of which 
he or she is a national. If the individual is a national of 
both countries or neither country, the competent authorities of 
the countries are to settle the question of residence by mutual 
agreement.
    In the case of an entity that would be considered to be a 
resident of both countries under the basic treaty definition, 
the proposed treaty provides that the entity is treated as a 
resident of one of the treaty countries only if and to the 
extent the competent authorities so agree. If the competent 
authorities are unable to reach such an agreement, the entity 
generally will be ineligible for benefits under the proposed 
treaty. This issue may be submitted for arbitration under the 
rules specified in Article 25 (Mutual Agreement Procedure). In 
this regard, the proposed treaty is similar to some existing 
U.S. treaties, but dissimilar to the U.S. model, which does not 
specify that treaty benefits will be denied in cases where the 
competent authorities cannot agree.
    Under the proposed treaty, an individual who otherwise 
would be treated as a Swiss resident will not be so treated for 
purposes of the proposed treaty if the individual elects not to 
be subject to the generally applicable Swiss income taxes with 
respect to all U.S.-source income. This rule applies to alien 
residents of Switzerland who elect to be taxed under an 
alternative regime available in Switzerland instead of under 
the generally-applicable Swiss income tax.

Article 5. Permanent Establishment

    The proposed treaty contains a definition of the term 
``permanent establishment'' that generally follows the pattern 
of other recent U.S. income tax treaties, the U.S. model, and 
the OECD model.
    The permanent establishment concept is one of the basic 
devices used in income tax treaties to limit the taxing 
jurisdiction of the host country and thus to mitigate double 
taxation. Generally, an enterprise that is a resident of one 
country is not taxable by the other country on its business 
profits unless those profits are attributable to a permanent 
establishment of the resident in the other country. In 
addition, the permanent establishment concept is used to 
determine whether the reduced rates of, or exemptions from, tax 
provided for dividends, interest, and royalties apply or 
whether those amounts are taxed as business profits.
    In general, under the proposed treaty, a permanent 
establishment is a fixed place of business through which an 
enterprise carries on business in whole or in part. A permanent 
establishment includes (but is not limited to) a place of 
management, a branch, an office, a factory, a workshop, a mine, 
an oil or gas well, a quarry, or any other place of extraction 
of natural resources. It also includes any building site or 
construction or installation project, or an installation or 
drilling rig or ship used for the exploration or development of 
natural resources, if it lasts for more than 12 months. The 
Technical Explanation states that the 12-month test applies 
separately to each site or project, but that projects that are 
commercially and geographically interdependent are to be 
treated as a single project. The Technical Explanation further 
states that if the 12-month threshold is exceeded, the site or 
project is treated as a permanent establishment from the first 
day of activity.
    Notwithstanding this general definition of a permanent 
establishment, the proposed treaty provides that the following 
specified activities do not constitute a permanent 
establishment: the use of facilities solely for storing, 
displaying, or delivering goods or merchandise belonging to the 
enterprise; the maintenance of a stock of goods or merchandise 
belonging to the enterprise solely for storage, display, or 
delivery or solely for processing by another enterprise; the 
maintenance of a fixed place of business solely for the 
purchase of goods or merchandise or the collection of 
information for the enterprise; the maintenance of a fixed 
place of business solely for the purpose of carrying on, for 
the enterprise, advertising, the supply of information, 
scientific research, or other activities of a preparatory or 
auxiliary character. The proposed treaty provides that the 
maintenance of a fixed place of business solely for any 
combination of these activities does not constitute a permanent 
establishment, provided that the overall activity resulting 
from such combination is of a preparatory or auxiliary 
character. In contrast, the U.S. model provides that such a 
combination of activities does not give rise to a permanent 
establishment without regard to whether the combination is of a 
preparatory or auxiliary character.
    If a person, other than an independent agent, is acting on 
behalf of an enterprise and has and habitually exercises in a 
country the authority to conclude contracts in the name of an 
enterprise, the enterprise generally will be deemed to have a 
permanent establishment in that country in respect of any 
activities that person undertakes for the enterprise. This rule 
does not apply where the activities of such person is limited 
to those activities described above, such as storage, display, 
or delivery of merchandise, which do not constitute a permanent 
establishment.
    The proposed treaty further provides that no permanent 
establishment is deemed to arise based on an agent's activities 
if the agent is a broker, general commission agent, or any 
other agent of independent status acting in the ordinary course 
of its business. The Technical Explanation states that an 
independent agent is one that is both legally and economically 
independent of the enterprise. Whether an agent and an 
enterprise are independent depends on the facts and 
circumstances of the particular case.
    The fact that a company that is resident in one country 
controls or is controlled by a company that is a resident of 
the other country, or that carries on business in that other 
country, does not of itself cause either company to be a 
permanent establishment of the other.

Article 6. Income from Real Property

    This article covers income, but not gains, from real 
property. The rules covering gains from the sale of real 
property are contained in Article 14 (Gains).
    Under the proposed treaty, income derived by a resident of 
one country from real property situated in the other country 
may be taxed in the country where the real property is 
situated. Income from real property includes income from 
agriculture or forestry. The country in which the real property 
is situated is not, however, granted an exclusive right to tax 
the income derived from the real property; such income also may 
be taxed in the recipient's country of residence.
    The term ``real property'' generally has the meaning that 
it has under the law of the country in which the property in 
question is situated. In the case of the United States, the 
term ``real property'' is defined in Treas. Reg. sec. 1.897-
1(b). However, like the OECD model, the proposed treaty 
specifies that the term includes property accessory to real 
property, livestock and equipment used in agriculture and 
forestry, rights with respect to which the law of landed 
property applies, usufruct of real property, and rights to 
payment with respect to the working of mineral deposits and 
other natural resources. The proposed treaty further specifies 
that ships and aircraft do not constitute real property.
    The country in which real property is situated may tax 
income derived from the direct use, letting, or use in any 
other form of such property. The rules of this article allowing 
source-country taxation also apply to income from real property 
of an enterprise and to income from real property used for the 
performance of independent personal services. Accordingly, 
income from real property may be taxed by the country in which 
it is situated even though such income is not attributable to a 
permanent establishment or fixed base in such country.
    The proposed treaty provides residents of a country that 
are taxable in the other country on income from real property 
situated in the other country with an election, subject to the 
procedures of the domestic law of the country in which the 
property is situated, to be taxed by the other country on such 
income on a net basis as if such income were attributable to a 
permanent establishment or fixed base. Such election is binding 
for taxable years as provided by the domestic law of the 
country in which the property is located. U.S. internal law 
provides such a net-basis election in the case of income of a 
foreign person from U.S. real property (Code secs. 871(d) and 
882(d)).

Article 7. Business Profits

            U.S. internal law
    U.S. law distinguishes between the U.S. business income and 
other U.S. income of a nonresident alien or foreign 
corporation. A nonresident alien or foreign corporation is 
subject to a flat 30-percent rate (or lower treaty rate) of tax 
on certain U.S.-source income if that income is not effectively 
connected with the conduct of a trade or business within the 
United States. The regular individual or corporate rates apply 
to income (from any source) which is effectively connected with 
the conduct of a trade or business within the United States.
    The treatment of income as effectively connected with a 
U.S. business depends upon whether the source of the income is 
U.S. or foreign. In general, U.S.-source periodic income (such 
as interest, dividends, and rents) and U.S.-source capital 
gains are effectively connected with the conduct of a trade or 
business within the United States if the asset generating the 
income is used in, or held for use in, the conduct of the trade 
or business or if the activities of the trade or business were 
a material factor in the realization of the income. All other 
U.S.-source income of a person engaged in a trade or business 
in the United States is treated as effectively connected with 
the conduct of a trade or business in the United States.
    Foreign-source income generally is treated as effectively 
connected income only if the foreign person has an office or 
other fixed place of business in the United States and the 
income is attributable to that place of business. Only three 
types of foreign-source income are considered to be effectively 
connected income: rents and royalties for the use of certain 
intangible property derived from the active conduct of a U.S. 
business; certain dividends and interest either derived in the 
active conduct of a banking, financing or similar business in 
the United States or received by a corporation the principal 
business of which is trading in stocks or securities for its 
own account; and certain sales income attributable to a U.S. 
sales office. Special rules apply in the case of insurance 
companies.
    Any income or gain of a foreign person for any taxable year 
that is attributable to a transaction in another taxable year 
is treated as effectively connected with the conduct of a U.S. 
trade or business if it would have been so treated had it been 
taken into account in that other taxable year (Code sec. 
864(c)(6)).
            Proposed treaty limitations on internal law
    Under the proposed treaty, business profits of an 
enterprise of one country are taxable in the other country only 
to the extent that they are attributable to a permanent 
establishment in the other country through which the enterprise 
carries on business.
    The taxation of business profits under the proposed treaty 
differs from U.S. rules for taxing business profits primarily 
by requiring more than merely being engaged in a trade or 
business before a country can tax business profits and by 
substituting an ``attributable to'' standard for the Code's 
``effectively connected'' standard. Under the Code, all that is 
necessary for effectively connected business profits to be 
taxed is that a trade or business be carried on in the United 
States.
    The present treaty provides that if a Swiss enterprise has 
a permanent establishment in the United States, the United 
States may tax all the U.S.-source income of the permanent 
establishment. The proposed treaty eliminates this ``force of 
attraction'' rule. On the other hand, unlike the present 
treaty, the proposed treaty permits the United States to tax 
certain non-U.S.-source income of a permanent establishment of 
a Swiss enterprise.
    Under the proposed treaty, the business profits of a 
permanent establishment are determined on an arm's-length 
basis. The proposed treaty provides that the business profits 
attributed to a permanent establishment are determined based on 
the profits it would make if it were a distinct and independent 
enterprise engaged in the same or similar activities under the 
same or similar conditions. The proposed treaty further 
provides that the business profits to be attributed to the 
permanent establishment include only the profits derived from 
the assets or activities of the permanent establishment. The 
proposed treaty is consistent with the U.S. model and other 
existing U.S. treaties in this respect. Amounts may be 
attributed to the permanent establishment whether they are from 
sources within or without the country in which the permanent 
establishment is located.
    The Memorandum of Understanding specifically addresses the 
attribution of profits to a permanent establishment in the case 
of contracts for the survey, supply, installation, or 
construction of public works or industrial, commercial, or 
scientific equipment or premises. The profits attributable to 
the permanent establishment are determined on the basis only of 
the portion of such a contract that is effectively carried out 
by the permanent establishment and not on the basis of the 
total amount of the contract. The profits attributable to the 
portion of the contract carried out by the enterprise's head 
office are not taxable in the country in which the permanent 
establishment is situated.
    In computing business profits, the proposed treaty provides 
that deductions are allowed for expenses incurred for the 
purposes of the permanent establishment. These deductions 
include a reasonable allocation of executive and general 
administrative expenses, research and development expenses, 
interest, and other expenses incurred for the purposes of the 
enterprise as a whole (or the part of the enterprise that 
includes the permanent establishment). This rule applies 
without regard to where such expenses are incurred. According 
to the Technical Explanation, it is expected that each country 
will use its own expense allocation rules. This rule permits 
the United States to use its current expense allocation rules 
in determining deductible amounts. Thus, for example, a Swiss 
company which has a permanent establishment in the United 
States but which has its head office in Switzerland will, in 
computing the U.S. tax liability of the permanent 
establishment, be entitled to deduct a portion of the executive 
and general administrative expenses incurred in Switzerland by 
the head office for purposes of operating the U.S. permanent 
establishment, allocated and apportioned in accordance with 
Treas. Reg. section 1.861-8.
    Like the OECD model, the proposed treaty provides that a 
country may determine the business profits attributed to a 
permanent establishment on the basis of an apportionment of the 
total profits of the enterprise. If it is customary in a 
country to use a total profits apportionment method, such 
method may be used pursuant to the proposed treaty, provided 
that the method of apportionment gives results that are 
consistent with the arm's-length principle of this article. 
This rule is not specified in the U.S. model; however, the 
provisions of the U.S. model permit the use of a total profits 
apportionment method as a means of determining arm's-length 
profits. The Technical Explanation states that methods other 
than separate accounting may be used to estimate the arm's-
length profits of a permanent establishment, provided that the 
method approximates the results that would be achieved under a 
separate accounting approach.
    Business profits are not attributed to a permanent 
establishment merely by reason of the purchase of goods or 
merchandise by a permanent establishment for the enterprise. 
Thus, where a permanent establishment purchases goods for its 
head office, the business profits attributed to the permanent 
establishment with respect to its other activities are not 
increased by the profit element with respect to its purchasing 
activities.
    The proposed treaty provides that the amount of profits 
attributable to a permanent establishment must be determined by 
the same method each year unless there is good and sufficient 
reason to change the method.
    Where business profits include items of income which are 
dealt with separately in other articles of the treaty, those 
other articles, and not the business profits article, govern 
the treatment of such items of income. Thus, for example, 
profits attributable to a U.S. ticket office of a Swiss airline 
generally are exempt from U.S. Federal income tax under the 
provisions of Article 8 (Shipping and Air Transport). This rule 
does not apply, however, where the other article specifically 
provides that this article takes precedence (e.g., Article 10 
specifically provides that dividends attributable to a 
permanent establishment are taxable as business profits).
    Unlike the U.S. model, the proposed treaty does not contain 
a general definition of ``business profits.'' The Technical 
Explanation states that such term should be read to include all 
income derived from any trade or business. The proposed treaty 
specifies that the term ``business profits'' includes income 
derived from the rental of tangible movable property and the 
rental or licensing of cinematographic films or works on film, 
tape, or other means of reproduction for use in radio or 
television broadcasting. Accordingly, such income may be taxed 
in the source- country only if the income is attributable to a 
permanent establishment. The Technical Explanation states that 
the term ``business profits'' is understood to include income 
attributable to notional principal contracts and other 
financial instruments to the extent such income is related to a 
trade or business carried on through the permanent 
establishment.

Article 8. Shipping and Air Transport

    Article 8 of the proposed treaty covers income from the 
operation of ships and aircraft in international traffic. The 
rules governing income from the sale of ships and aircraft 
operated in international traffic are contained in Article 13 
(Gains).
    Under the proposed treaty, profits which are derived by an 
enterprise of one country from the operation in international 
traffic of ships or aircraft are taxable only in that country, 
regardless of the existence of a permanent establishment in the 
other country. ``International traffic'' means any transport by 
a ship or aircraft except when such transport is operated 
solely between places in a treaty country (Article 3(1)(e) 
(General Definitions)). Unlike the exemption provided in the 
present treaty, the exemption in the proposed treaty applies 
whether or not the ships or aircraft are registered in the 
first country.
    The Technical Explanation states that income from the 
rental of ships or aircraft on a full basis for use in 
international traffic constitutes income from the operation of 
ships and aircraft in international traffic. Such income 
therefore is exempt from tax in the other country. In addition 
the proposed treaty provides that income from the operation of 
ships or aircraft in international traffic includes profits 
derived from the rental of ships or aircraft if such rental 
profits are incidental to profits from the operation of ships 
or aircraft in international traffic. This rule applies to 
leases on a bareboat basis. Unlike under the U.S. model, the 
exemption from tax under the proposed treaty does not apply to 
a bareboat lessor (such as a financial institution or a leasing 
company) that does not operate ships or aircraft in 
international traffic, but that leases ships or aircraft for 
use in international traffic. In such a case, the rental income 
constitutes business profits and is subject to tax in the 
source-country if it is attributable to a permanent 
establishment. The Technical Explanation states that it is 
understood that such rental income will not be considered to be 
attributable to a permanent establishment unless the permanent 
establishment was involved in negotiating or concluding the 
lease agreement.
    Unlike the U.S. model, the proposed treaty does not address 
the treatment of containers. Under the U.S. model, income 
derived by an enterprise of one country from the use, 
maintenance, or rental of containers (including trailers, 
barges, and related equipment for the transport of containers) 
used in international traffic is taxable only in that country. 
Under the proposed treaty, such income constitutes business 
profits and is taxable under the provisions of Article 7.
    As under the U.S. model, the shipping and air transport 
provisions of the proposed treaty also apply to profits from 
participation in a pool, joint business, or international 
operating agency. This rule covers profits derived pursuant to 
an arrangement for international cooperation between carriers 
in shipping and air transport.

Article 9. Associated Enterprises

    The proposed treaty, like most other U.S. tax treaties, 
contains an arm's-length pricing provision. The proposed treaty 
recognizes the right of each country to determine the profits 
taxable by that country in the case of transactions between 
related enterprises, if the profits of an enterprise do not 
reflect the conditions which would have been made between 
independent enterprises.
    The redetermination rules of the proposed treaty apply 
where an enterprise of one country participates directly or 
indirectly in the management, control, or capital of an 
enterprise of the other country or the same persons participate 
directly or indirectly in the management, control, or capital 
of such enterprises. In such cases, if conditions between the 
two enterprises in their commercial or financial relations 
differ from those which would be made between independent 
enterprises, then any profits which would have accrued to one 
of the enterprises but for these conditions may be included in 
the profits of such enterprise and taxed accordingly. This 
provision allows a country to adjust the income or loss of one 
or both of the enterprises if they have entered into non-arm's-
length transactions.
    The Technical Explanation states that it is understood that 
this provision does not limit the rights of the respective 
countries to apply their internal intercompany pricing rules 
(e.g., Code sec. 482, in the case of the United States), 
provided that such rules are in accord with the arm's-length 
principle. The Technical Explanation also states that it is 
understood that the U.S. ``commensurate with income'' standard 
for determining appropriate transfer prices for intangibles was 
designed to operate consistently with the arm's-length 
standard. Finally, the Technical Explanation states that this 
rule permits adjustments to address thin capitalization issues.
    Under the proposed treaty, where a country proposes to tax 
as profits of an enterprise profits on which an enterprise of 
the country has been taxed in such other country, the competent 
authorities of the countries may consult pursuant to the mutual 
agreement procedure (Article 25). If the competent authorities 
agree on adjustments to the profits of each such enterprise 
reflecting the conditions which would have been made between 
independent enterprises, each country will make the agreed 
adjustment to the tax on the profits on each enterprise. To 
avoid double taxation, the proposed treaty's saving clause 
retaining full taxing U.S. jurisdiction over U.S. citizens and 
residents does not apply to prevent such correlative 
adjustments.

Article 10. Dividends

            Internal taxation rules

United States

    The United States generally imposes a 30-percent tax on the 
gross amount of U.S.-source dividends paid to nonresident alien 
individuals and foreign corporations. The 30-percent tax does 
not apply if the foreign recipient is engaged in a trade or 
business in the United States and the dividends are effectively 
connected with that trade or business. In such a case, the 
foreign recipient is subject to U.S. tax on such dividends on a 
net basis at graduated rates in the same manner as a U.S. 
person would be taxed.
    Under U.S. law, the term ``dividend'' generally means any 
distribution of property made by a corporation to its 
shareholders, either from accumulated earnings and profits or 
current earnings and profits. However, liquidating 
distributions generally are treated as payments in exchange for 
stock and, thus, are not subject to the 30-percent withholding 
tax described above.
    Dividends paid by a U.S. corporation generally are U.S.-
source income. Also treated as U.S.-source income for this 
purpose are portions of certain dividends paid by a foreign 
corporation that conducts a U.S. trade or business. The U.S. 
30-percent withholding tax imposed on the U.S.-source portion 
of the dividends paid by a foreign corporation is referred to 
as the ``second-level'' withholding tax. This second-level 
withholding tax is imposed only if a treaty prevents 
application of the statutory branch profits tax.
    In general, corporations are not entitled under U.S. law to 
a deduction for dividends paid. Thus, the withholding tax on 
dividends theoretically represents imposition of a second level 
of tax on corporate taxable income. Treaty reductions of this 
tax reflect the view that where the United States already 
imposes corporate-level tax on the earnings of a U.S. 
corporation, a 30-percent withholding rate may represent an 
excessive level of source-country taxation. Moreover, the 
further reduced rate of tax often applied by treaty to 
dividends paid to direct investors reflects the view that the 
source-country tax on payments of profits to a substantial 
foreign corporate shareholder may properly be reduced further 
to avoid double corporate-level taxation and to facilitate 
international investment.
    A REIT is a corporation, trust, or association that is 
subject to the regular corporate income tax, but that receives 
a deduction for dividends paid to its shareholders if certain 
conditions are met. In particular, in order to qualify as a 
REIT, the REIT must distribute the bulk of its income on a 
current basis. Thus, a REIT is treated, in essence, as a 
conduit for federal income tax purposes: generally no tax is 
imposed at the entity level and the shareholders are taxed on a 
current basis on the REIT's earnings. Because a REIT in form is 
taxable as a U.S. corporation, a distribution of its earnings 
is treated as a dividend rather than as income of the same type 
as the underlying earnings. Such distributions are subject to 
the U.S. 30-percent withholding tax when paid to foreign 
owners.
    A REIT is organized to allow persons to diversify ownership 
in primarily passive real estate investments. As such, the 
principal income of a REIT often is rentals from real estate 
holdings. Like dividends, U.S.-source rental income of foreign 
persons generally is subject to the 30-percent withholding tax 
(unless the recipient makes an election to have such rental 
income taxed in the United States on a net basis at the regular 
graduated rates). Unlike the withholding tax on dividends, 
however, the withholding tax on real estate rental income 
generally is not reduced in U.S. income tax treaties.
    U.S. internal law also generally treats a regulated 
investment company (``RIC'') as both a corporation and a 
conduit for income tax purposes: generally no tax is imposed at 
the entity level and the shareholders are taxed on a current 
basis on the RIC's earnings. The purpose of a RIC is to allow 
investors to hold a diversified portfolio of securities. Thus, 
the holder of stock in a RIC may be characterized as a 
portfolio investor in the stock held by the RIC, regardless of 
the proportion of the RIC's stock owned by the dividend 
recipient.
    A foreign corporation engaged in the conduct of a trade or 
business in the United States is subject to a flat 30-percent 
branch profits tax on its ``dividend equivalent amount,'' which 
is a measure of the accumulated U.S. effectively connected 
earnings of the corporation that are removed in any year from 
its U.S. trade or business. The dividend equivalent amount is 
limited by (among other things) the foreign corporation's 
aggregate earnings and profits accumulated in taxable years 
beginning after December 31, 1986. The Code provides that no 
U.S. treaty shall exempt any foreign corporation from the 
branch profits tax (or reduce the amount thereof) unless the 
foreign corporation is a ``qualified resident'' of the treaty 
country. The definition of a ``qualified resident'' under U.S. 
internal law is somewhat similar to the definition of a 
corporation eligible for benefits under the proposed treaty 
(discussed below in connection with Article 22 (Limitation on 
Benefits)).

Switzerland

    Switzerland generally imposes a withholding tax on profit 
distributions from Swiss corporations at a rate of 35 percent. 
For this purpose, profit distributions generally include 
dividends, liquidation proceeds, and hidden profits 
distributions.
    Profits of a branch in Switzerland generally are subject to 
Swiss income tax. However, Switzerland does not impose a 
withholding tax on branch profits.
            Proposed treaty limitations on internal law
    The present treaty provides that dividends derived from 
sources within one country by a resident of the other country 
may be taxed by the source-country. The rate of source-country 
tax generally is limited to 15 percent. However, the rate of 
tax is limited to 5 percent if the dividend recipient is a 
corporation controlling (directly or indirectly) at least 95 
percent of the voting power of the payor and not more than 25 
percent of the gross income of the payor is derived from 
interest and dividends (other than interest and dividends 
received from the payor's subsidiaries). This 5-percent rate 
does not apply if the relationship between the dividend-paying 
corporation and the dividend-receiving corporation was arranged 
or maintained primarily with the intention of qualifying for 
such rate.
    Under the proposed treaty, dividends beneficially owned by 
a resident of one country may be taxed by the residence country 
without limitation. In addition, such dividends also may be 
taxed in the country in which such dividends arise. However, 
source-country taxation is subject to limitations if the 
beneficial owner of the dividends is a resident of the other 
country. Under these limitations, source-country tax is limited 
to 5 percent of the gross amount of the dividends if the 
beneficial owner is a company that holds directly at least 10 
percent of the voting stock of the payor company. Relative to 
the present treaty, the proposed treaty represents a 
significant liberalization of the conditions under which the 5-
percent rate applies. Under the proposed treaty, source-country 
tax generally is limited to 15 percent of the gross amount of 
the dividends in all other cases. The proposed treaty provides 
that these limitations do not affect the taxation of the 
company on the profits out of which the dividends are paid.
    The proposed treaty provides that the 15-percent limitation 
(and not the 5-percent limitation) applies to dividends paid by 
a RIC. The proposed treaty provides that the 15-percent 
limitation applies to dividends paid by a REIT to an individual 
owning a less than 10-percent interest in the REIT. There is no 
limitation in the proposed treaty on the tax that may be 
imposed by the United States on a REIT dividend, if the 
beneficial owner of the dividend is either an individual 
holding a 10 percent or greater interest in the REIT or is not 
an individual. Thus, such a dividend is taxable at the 30-
percent United States statutory rate. The present treaty does 
not include these limitations on the application of the reduced 
rates of source-country taxation to dividends from RICs and 
REITs.
    The proposed treaty provides an exemption from source-
country tax in the case of dividends beneficially owned by a 
resident of the other country that is a qualifying pension or 
other retirement arrangement and that does not control the 
dividend-paying company. This rule applies to a pension or 
other retirement arrangement that has been determined by the 
competent authority to generally correspond to a pension or 
other retirement arrangement recognized for tax purposes by the 
source-country. The Technical Explanation states that 
individual savings plans (such as individual retirement 
accounts) are not pension or other retirement arrangements for 
this purpose.
    Like the U.S. model, the proposed treaty defines 
``dividends'' as income from shares or other rights, not 
constituting debt-claims, that participate in profits. 
Dividends also include income subjected to the same tax 
treatment as income from shares under the law of the country in 
which the income arises. The proposed protocol provides that 
participation in the profits of the obligor is a factor in 
determining whether an instrument characterized as a debt-claim 
should be treated as equity for purposes of the proposed 
treaty.
    The proposed treaty's reduced rates of tax on dividends do 
not apply if the beneficial owner of the dividend carries on 
business through a permanent establishment (or a fixed base, in 
the case of an individual who performs independent personal 
services) in the source-country and the dividends are 
attributable to the permanent establishment (or fixed base). 
Such dividends are taxed as business profits (Article 7) or as 
income from the performance of independent personal services 
(Article 14). In addition, dividends attributable to a 
permanent establishment or fixed base, but received after the 
permanent establishment or fixed base is no longer in 
existence, are taxable in the country where the permanent 
establishment or fixed base existed (Article 28, paragraph 3).
    The proposed treaty contains a general limitation on the 
taxation by one country of dividends paid by companies that are 
residents of the other country. Under this provision, a country 
may not, except in two cases, impose any taxes on dividends 
paid by a company resident in the other country that derives 
profits or income from the first country. The first exception 
is the case where the dividends are paid to residents of the 
first country. The second exception is the case where the 
dividends are attributable to a permanent establishment or a 
fixed base in the first country.
    The proposed treaty allows the United States to impose the 
branch profits tax on a Swiss resident corporation that either 
has a permanent establishment in the United States or is 
subject to tax on a net basis in the United States on income 
from real property or gains from the disposition of real 
property interests. In cases where a Swiss corporation conducts 
a trade or business in the United States, but not through a 
permanent establishment, the proposed treaty generally 
eliminates the branch profits tax that the Code imposes on such 
corporation.
    In general, the proposed treaty provides that the branch 
profits tax may be imposed by the United States only on the 
business profits of the Swiss corporation that are attributable 
to its U.S. permanent establishment and the income that is 
subject to tax on a net basis as income or gains from real 
property. The tax is further limited to such amounts that are 
included in the ``dividend equivalent amount,'' as that term is 
defined under the Code and as it may be amended from time to 
time without changing the general principle thereof. The 
proposed protocol specifies that the general principle of the 
``dividend equivalent amount'' is to approximate the portion of 
the specified income that is comparable to the amount that 
would be distributed as a dividend if such income were earned 
by a U.S. subsidiary. The foreign corporation's dividend 
equivalent amount is equal to the after-tax earnings 
attributable to the specified income, reduced by any increase 
in the corporation's net investment in U.S. assets or increased 
by any reduction in the corporation's net investment in U.S. 
assets.
    The proposed treaty limits the rate of the U.S. branch 
profits tax to the direct investment dividend tax rate of 5 
percent.

Article 11. Interest

            Internal taxation rules

United States

    Subject to numerous exceptions (such as those for portfolio 
interest, bank deposit interest, and short-term original issue 
discount), the United States imposes a 30-percent tax on U.S.-
source interest paid to foreign persons under the same rules 
that apply to dividends. U.S.-source interest, for purposes of 
the 30-percent tax, generally is interest on the debt 
obligations of a U.S. person, other than a U.S. person that 
meets specified foreign business requirements. Also subject to 
the 30-percent tax is interest paid to a foreign person by the 
U.S. trade or business of a foreign corporation. A foreign 
corporation is subject to a branch-level excess interest tax 
with respect to certain ``excess interest'' of a U.S. trade or 
business of such corporation; under this rule an amount equal 
to the excess of the interest deduction allowed with respect to 
the U.S. business over the interest paid by such business is 
treated as if paid by a U.S. corporation to a foreign parent 
and therefore is subject to a withholding tax.
    Portfolio interest generally is defined as any U.S.-source 
interest that is not effectively connected with the conduct of 
a trade or business and that (1) is paid on an obligation that 
satisfies certain registration requirements or specified 
exceptions thereto, and (2) is not received by a 10-percent 
owner of the issuer of the obligation, taking into account 
shares owned by attribution. However, the portfolio interest 
exemption is inapplicable to certain contingent interest 
income.
    If an investor holds an interest in a fixed pool of real 
estate mortgages that is a real estate mortgage interest 
conduit (``REMIC''), the REMIC generally is treated for U.S. 
tax purposes as a pass-through entity and the investor is 
subject to U.S. tax on a portion of the REMIC's income (which 
in turn generally is interest income). If the investor holds a 
so-called ``residual interest'' in the REMIC, the Code provides 
that a portion of the net income of the REMIC that is taxed in 
the hands of the investor -- referred to as the investor's 
``excess inclusion'' -- may not be offset by any net operating 
losses of the investor, must be treated as unrelated business 
income if the investor is an organization subject to the 
unrelated business income tax and is not eligible for any 
reduction in the 30-percent rate of withholding tax (by treaty 
or otherwise) that would apply if the investor were otherwise 
eligible for such a rate reduction.

Switzerland

    Switzerland generally imposes a withholding tax on interest 
derived from deposits with Swiss banks and bonds from Swiss 
debtors at a rate of 35 percent. Switzerland generally does not 
impose a withholding tax on interest on intercompany loans.
            Proposed treaty limitations on internal law
    The proposed treaty generally exempts interest derived and 
beneficially owned by a resident of one country from tax in the 
other country. The present treaty allows source-country tax at 
a maximum rate of 5 percent on interest derived by a resident 
of the other country.
    The treaty defines the term ``interest'' generally as 
income from debt claims of every kind, whether or not secured 
by mortgage. In particular, it includes income from government 
securities and from bonds or debentures, including premiums and 
prizes attaching to such securities, bonds, or debentures. The 
term `` interest'' includes an excess inclusion with respect to 
a residual interest in a REMIC. Interest does not include 
income covered in Article 10 (Dividends). Penalty charges for 
late payment also are not treated as interest. The proposed 
protocol provides that participation in the profits of the 
obligor is a factor in determining whether an instrument 
characterized as a debt claim should be treated as equity for 
purposes of the proposed treaty.
    This exemption from source-country tax does not apply if 
the beneficial owner of the interest carries on business 
through a permanent establishment (or a fixed base, in the case 
of an individual who performs independent personal services) in 
the source-country and the interest paid is attributable to the 
permanent establishment (or fixed base). In that event, the 
interest is taxed as business profits (Article 7) or income 
from the performance of independent personal services (Article 
14). In addition, interest attributable to a permanent 
establishment or fixed base, but received after the permanent 
establishment or fixed base is no longer in existence, is 
taxable in the country where the permanent establishment or 
fixed base existed (Article 28, paragraph 3).
    The proposed treaty addresses the issue of non-arm's-length 
interest charges between related parties (or parties having an 
otherwise special relationship) by stating that this article 
applies only to the amount of arm's-length interest. Any amount 
of interest paid in excess of the arm's-length interest is 
taxable according to the laws of each country, taking into 
account the other provisions of the proposed treaty. For 
example, excess interest paid to a parent corporation may be 
treated as a dividend under local law and, thus, entitled to 
the benefits of Article 10 (Dividends).
    The proposed treaty limits the right of one country to tax 
interest paid by a company that is resident in the other 
country. The first country may tax interest payments only if 
the interest is paid by a permanent establishment in that 
country or is paid out of income or gain from real property 
that is subject to net-basis taxation in that country. This 
rule allows the United States to impose tax on certain interest 
payments made by a Swiss company; however, because of the 
general rule providing for exclusive residence-country 
taxation, this rule does not allow the United States to tax 
such interest payments if made to Swiss residents.
    Like the U.S. model, the proposed treaty includes two 
limitations on the application of the exemption in the case of 
United States. First, the exemption does not apply to interest 
arising in the United States if the amount of such interest is 
determined by reference to receipts, sales, income, profits, or 
other cash flow of the debtor or a related person, to any 
change in the value of property of the debtor or a related 
person, or to any dividend, partnership distribution or similar 
payment by the debtor or similar person. However, this rule 
applies only to the extent that such interest is excluded from 
the definition of portfolio interest under the Code. Second, 
the exemption does not apply to an excess exclusion with 
respect to a residual interest in a REMIC. Amounts covered by 
these two exceptions may be taxed by the United States under 
the proposed treaty at the full statutory rate of 30 percent.

Article 12. Royalties

            Internal taxation rules
    Under the same system that applies to dividends and 
interest, the United States imposes a 30-percent tax on U.S.-
source royalties paid to foreign persons and on gains from the 
disposition of certain intangible property to the extent that 
such gains are from payments contingent on the productivity, 
use, or disposition of the intangible property. Royalties are 
from U.S. sources if they are for the use of property located 
in the United States. U.S.-source royalties include royalties 
for the use of, or the right to use, intangible property in the 
United States. Switzerland does not impose a withholding tax on 
royalties.
            Proposed treaty limitations on internal law
    The proposed treaty provides that royalties derived and 
beneficially owned by a resident of a treaty country may be 
taxed only by the residence country. Thus, the proposed treaty 
generally continues the rule of the present treaty that exempts 
U.S.-source royalties paid to Swiss residents from the 30-
percent U.S. tax. This exemption is similar to that provided in 
the U.S. model.
    Royalties are defined as payments of any kind received as 
consideration for the use of or the right to use any copyright 
of literary, artistic, or scientific work; for the use of or 
right to use any patent, trademark, design or model, plan, 
secret formula or process, or other like right or property; or 
for information concerning industrial, commercial or scientific 
experience. The term ``royalties'' also includes gains from the 
alienation of any property described above which are contingent 
on the productivity, use, or disposition of the property. 
Unlike the U.S. model, the proposed treaty specifically 
excludes from the definition of royalties payments for the 
right to use motion pictures or films, tapes, or other means of 
reproduction for use in radio or television broadcasting. Under 
the proposed treaty, such payments are specifically treated as 
business profits (Article 7). Such amounts are taxable by the 
source-country on a net basis if such payments are attributable 
to a permanent establishment.
    Unlike the U.S. model, the proposed treaty does not include 
an explicit reference to computer software in the definition of 
royalties. The Technical Explanation states that consideration 
for the use of software is treated as royalties or business 
profits, depending on the facts and circumstances of the 
transaction. In this regard, the Technical Explanation further 
states that it is understood that payments for transfers of 
``shrink-wrap'' computer software constitute business profits 
rather than royalties.
    The exemption under the proposed treaty does not apply 
where the beneficial owner carries on business through a 
permanent establishment (or a fixed base, in the case of an 
individual who performs independent personal services) in the 
source-country and the royalties are attributable to the 
permanent establishment (or fixed base). In that event, such 
royalties are taxed as business profits (Article 7) or income 
from the performance of personal services (Article 14). In 
addition, royalties attributable to a permanent establishment 
or fixed base, but received after the permanent establishment 
or fixed base is no longer in existence, are taxable in the 
country where the permanent establishment or fixed base existed 
(Article 28, paragraph 3).
    The proposed treaty addresses the issue of non-arm's-length 
royalties between related parties (or parties having an 
otherwise special relationship) by stating that this article 
applies only to the amount of arm's-length royalties. Any 
amount of royalties paid in excess of the arm's-length royalty 
is taxable according to the laws of each country, taking into 
account the other provisions of the proposed treaty. For 
example, excess royalties paid to a parent corporation by its 
subsidiary may be treated as a dividend under local law and, 
thus, entitled to the benefits of Article 10 of the proposed 
treaty.

Article 13. Gains

            Internal taxation rules

United States

    Generally, gain realized by a nonresident alien individual 
or a foreign corporation from the sale of a capital asset is 
not subject to U.S. tax unless the gain is effectively 
connected with the conduct of a U.S. trade or business. 
However, a nonresident alien individual or foreign corporation 
is subject to U.S. tax on gain from the sale of a U.S. real 
property interest as if the gain were effectively connected 
with a trade or business conducted in the United States. ``U.S. 
real property interests'' include interests other than solely 
as a creditor (e.g., stock) in certain corporations that hold 
or held U.S. real property, provided that at least 50 percent 
of the fair market value of such corporation is (or was) 
attributable to U.S. real property interests.

Switzerland

    Under Swiss law, gains from the sale of a capital asset by 
a foreign corporation may be taxed in the same manner as other 
business income. In addition, gains from the sale of Swiss real 
estate by a foreign individual may be subject to tax in 
Switzerland.
            Proposed treaty limitations on internal law
    Under the proposed treaty, gains derived by a resident of 
one country attributable to the alienation of real property 
situated in the other country may be taxed in the other 
country. Real property situated in the other country for 
purposes of this article includes real property referred to in 
Article 6 (Income from Real Property); shares or other 
comparable rights in a company resident in the other country, 
the assets of which consist wholly or principally of real 
property in such other country; and an interest in a 
partnership, trust, or estate, to the extent attributable to 
real property situated in such other state. The proposed treaty 
specifies that real property includes a United States real 
property interest, as defined under the Code (as it may be 
amended from time to time without changing the general 
principles thereof). The Technical Explanation states that 
distributions by a REIT that are attributable to gains derived 
from a disposition of real property are taxable under this 
article (and are not taxable under the dividends article 
(Article 10)).
    The proposed treaty contains a standard provision which 
permits a country to tax the gain from the alienation of 
movable property that forms part of the business property of a 
permanent establishment located in that country or that 
pertains to a fixed base in that country. This rule also 
applies to gains from the alienation of such a permanent 
establishment or such a fixed base. The proposed treaty 
generally does not permit the United States to tax gains from 
the disposition of any movable property after such property 
ceases to be used in a U.S. trade or business. However, gains 
attributable to a permanent establishment or a fixed base, but 
received after the permanent establishment or fixed base is no 
longer in existence, are taxable in the country where the 
permanent establishment or fixed base existed (Article 28, 
paragraph 3).
    The proposed treaty provides that gains of an enterprise of 
one of the treaty countries from the alienation of ships or 
aircraft operated in international traffic are taxable only in 
that country. This rule applies even if such gain is 
attributable to a permanent establishment in the other country. 
Unlike under the U.S. model, this exemption under the proposed 
treaty does not apply to gain from the alienation of containers 
used in international traffic. The proposed treaty further 
provides that gains described in the royalties article (Article 
12) are taxable only in accordance with that article.
    The proposed treaty provides that gains from the alienation 
of any property other than that discussed above are taxable 
under the proposed treaty only in the country of residence.
    The proposed treaty provides authority for the competent 
authorities to coordinate the two countries' rules regarding 
the nonrecognition of income upon a corporate organization, 
reorganization, merger, or similar transaction. Where a 
resident of one country alienates property in such a 
transaction and does not recognize income on such transaction 
for purposes of such country's tax, the competent authority of 
the other country, if requested by the acquiror of such 
property, may agree to defer recognition of income for purposes 
of the other country's tax. Any such deferral would be for such 
time and subject to such terms and conditions as may be 
stipulated in the agreement. The Technical Explanation states 
that whether any deferral is granted by the competent authority 
is entirely within the discretion of the competent authority.
    The proposed treaty provides an additional rule regarding 
the coordination of the timing of income recognition under the 
two tax systems. This rule applies if a resident of one country 
who is subject to tax in both countries on a disposition of 
property is taxable currently on such disposition in one 
country but not the other country. In such a case, the resident 
may elect to be taxed in the country that would otherwise allow 
deferral as if he or she had sold and repurchased the property, 
immediately before the disposition, for an amount equal to its 
fair market value. Such an election will apply for the taxable 
year in which made and any time thereafter.

Article 14. Independent Personal Services

            Internal taxation rules

United States

    The United States taxes the income of a nonresident alien 
at the regular graduated rates if the income is effectively 
connected with the conduct of a trade or business in the United 
States by the individual. The performance of personal services 
within the United States may constitute the conduct of a trade 
or business within the United States.
    Under the Code, the income of a nonresident alien from the 
performance of personal services in the United States is 
excluded from U.S.-source income, and therefore is not taxed by 
the United States in the absence of a U.S. trade or business, 
if: (1) the individual is not in the United States for over 90 
days during the taxable year; (2) the compensation does not 
exceed $3,000; and (3) the services are performed as an 
employee of, or under a contract with, a foreign person not 
engaged in a trade or business in the United States or are 
performed for a foreign office or place of business of a U.S. 
person.

Switzerland

    Nonresident alien individuals generally are subject to 
Swiss tax on income derived from Swiss sources. Nonresidents 
may be subject to Swiss withholding tax on employment income 
and, in the case of artists and athletes, income earned from 
activities performed in Switzerland.
            Proposed treaty limitations on internal law
    The proposed treaty limits the right of each country to tax 
income from the performance of personal services by a resident 
of the other country. Under the proposed treaty (unlike the 
present treaty), income from the performance of independent 
personal services (i.e., services performed as an independent 
contractor, not as an employee) is treated separately from 
income from the performance of dependent personal services.
    Under the proposed treaty, like under the U.S. model, 
income from the performance of independent personal services by 
a resident of one country is exempt from tax in the other 
country unless the individual performing the services has a 
fixed base regularly available to him or her in the second 
country for the purpose of performing the activities. In that 
case, the nonresidence country may tax only that portion of the 
individual's income which is attributable to the fixed base in 
such country and that is derived in respect of services 
performed in such country. In contrast to the rules applicable 
to business profits, income from independent personal services 
is taxable in the country in which the fixed base is located 
only if such income is derived from services performed in such 
country.
    The proposed treaty provides that amounts attributable to a 
fixed base, but received or incurred after the fixed base is no 
longer in existence, may nevertheless be taken into account in 
the country in which the fixed base was located (Article 28, 
paragraph 3).
    Under the proposed treaty, in determining taxable 
independent personal services income, the principles of Article 
7 (Business Profits) are applicable. According to the Technical 
Explanation, the taxpayer may deduct all relevant expenses, 
wherever incurred, in computing the net income from independent 
personal services subject to tax in the country in which the 
fixed base is located.

Article 15. Dependent Personal Services

    Under the proposed treaty, wages, salaries, and other 
similar remuneration derived from services performed as an 
employee in one country (the source-country) by a resident of 
the other country are taxable only in the other country if 
three requirements are met: (1) the individual is present in 
the source-country for not more than 183 days in any twelve-
month period beginning or ending during the taxable year 
concerned; (2) the individual's employer is not a resident of 
the source-country; and (3) the compensation is not borne by a 
permanent establishment or fixed base of the employer in the 
source-country. These limitations on source-country taxation 
generally are consistent with the U.S. and OECD models.
    In this regard, the Memorandum of Understanding provides 
that this rule shall not preclude a country from withholding 
tax from such payments according to its domestic law. If, under 
this rule, the remuneration is taxable only in the residence 
country, the source country will make a refund of the withheld 
tax upon a duly filed claim. Such claims must be filed within 
five years after the close of the year of the withholding. This 
procedure is necessary because it may not be possible to know 
whether an employee will satisfy the requirements for an 
exemption from source-country tax until the close of the year.
    The proposed treaty, like the U.S. model, provides that 
compensation derived from employment as a member of the regular 
complement of a ship or aircraft operated in international 
traffic is taxable only in the employee's country of residence.

Article 16. Directors' Fees

    Under the proposed treaty, directors' fees and other 
similar payments derived by a resident of one country in his or 
her capacity as a member of the board of directors of a company 
which is a resident of the other country may be taxed in that 
other country. Under this rule, the country in which the 
company is resident may tax all of the remuneration paid to 
non-resident board members, regardless of where the services 
are performed. By contrast, under the U.S. model, the country 
in which the company is resident may tax only the portion of 
the non-resident board member's remuneration that is for 
services performed in such country.

Article 17. Artistes and Sportsmen

    Like the U.S. and OECD models, the proposed treaty contains 
rules that apply to the taxation of income earned by 
entertainers (such as theater, motion picture, radio, or 
television ``artistes,'' or musicians) and sportsmen. These 
rules apply notwithstanding the other provisions dealing with 
the taxation of income from personal services (Articles 14 and 
15) and business profits (Article 7), and are intended, in 
part, to prevent entertainers and sportsmen from using the 
proposed treaty to avoid paying any tax on their income earned 
in one of the countries.
    Under this article of the proposed treaty, one country may 
tax an entertainer or sportsman who is a resident of the other 
country on the income from his or her personal activities as 
such exercised in the first country during any year in which 
the gross receipts derived by him or her from such activities, 
including reimbursed expenses, exceed $10,000 or its Swiss 
franc equivalent. The threshold specified in the U.S. model is 
$20,000.
    Under the proposed treaty, if a Swiss entertainer 
maintained no fixed base in the United States and performed (as 
an independent contractor) for one day of a taxable year in the 
United States for gross receipts of $2,000, the United States 
could not tax that income. If, however, that entertainer's 
gross receipts were $30,000, the full $30,000 (less appropriate 
deductions) would be subject to U.S. tax. This provision does 
not bar the country of residence from also taxing that income 
(subject to a foreign tax credit). (See Article 23 (Relief from 
Double Taxation.))
    The Memorandum of Understanding clarifies that because it 
is not possible to know whether the $10,000 (or the Swiss franc 
equivalent) is exceeded until the end of the year, the source-
country may subject all payments to an entertainer or sportsman 
to withholding and refund any excess amount withheld upon a 
duly filed claim. Such claim must be filed within five years.
    According to the Technical Explanation, this article 
applies to all income directly connected with a performance by 
an entertainer or sportsman, such as appearance fees, award or 
prize money, and a share of the gate receipts. Income derived 
by an entertainer or sportsman from other than actual 
performance, such as royalties from record sales and payments 
for product endorsements, is not covered by this article; 
instead, these amounts are covered by other articles of the 
proposed treaty, such as Article 12 (Royalties) or Article 14 
(Independent Personal Services). For example, if a Swiss 
entertainer receives royalty income from the sale of recordings 
of a concert given in the United States, the royalty income 
will be exempt from U.S. withholding tax under Article 12, even 
if the remuneration from the concert itself may have been 
covered by this article.
    The proposed treaty provides that where income in respect 
of activities exercised by an entertainer or sportsman in his 
or her capacity as such accrues not to the entertainer or 
sportsman but to another person, that income may be taxed by 
the country in which the activities are exercised, unless it is 
established that neither the entertainer or sportsman nor 
persons related to him or her participate directly or 
indirectly in the profits of that other person in any manner, 
including the receipt of deferred remuneration, bonuses, fees, 
dividends, partnership distributions or other distributions. 
(This provision applies notwithstanding the business profits 
and independent personal service articles (Articles 7 and 14).) 
This provision prevents certain entertainers and sportsmen from 
avoiding tax in the country in which they perform by, for 
example, routing the compensation for their services through a 
third entity such as a personal holding company or a trust 
located in a country that would not tax the income.

Article 18. Pensions and Annuities

    Under the proposed treaty, pensions and other similar 
remuneration beneficially derived by a resident of either 
country in consideration of past employment generally are 
subject to tax only in the recipient's country of residence. 
This rule is subject to the provisions of Article 19 
(Government Service and Social Security). Thus, for example, it 
generally does not apply to pensions paid to a resident of one 
treaty country attributable to services performed for 
government entities of the other country. The Technical 
Explanation states that it is understood that this provision 
will apply to both periodic and lump sum payments. The present 
treaty similarly provides for exclusive residence-country tax 
with respect to pensions, but defines ``pension'' to include 
only periodic payments. The Technical Explanation states that 
this provision covers amounts paid by all private retirement 
plans and arrangements in consideration of past employment, 
regardless of whether they are considered qualified plans under 
the Code. The Technical Explanation further states that this 
provision covers individual retirement accounts.
    The proposed treaty provides that annuities may be taxed 
only in the country of residence of the person who derives and 
beneficially owns them. An annuity is defined as a stated sum 
payable periodically at stated times during a specified number 
of years or for life, under an obligation to make the payments 
in return for adequate and full consideration (other than 
services rendered). The present treaty similarly provides 
exclusive residence-country taxation for annuities. The U.S. 
model defines ``annuity'' to include only amounts paid during a 
specified number of years and not amounts paid for life.

Article 19. Government Service and Social Security

    Under the proposed treaty, remuneration, other than a 
pension, paid by a country or one of its political subdivisions 
or local authorities to an individual for services rendered to 
the payor generally is taxable in that country only. However, 
such remuneration is taxable only in the other country (the 
country that is not the payor) if the services are rendered in 
that other country and the individual is a resident of that 
other country who either is a national of that other country or 
did not become a resident of that country solely for the 
purpose of rendering the services. Thus, for example, 
Switzerland will not tax the compensation of a U.S. citizen and 
resident who is in Switzerland to perform services for the U.S. 
Government, and the United States will not tax the compensation 
of a Swiss citizen and resident who performs services for the 
U.S. Government in Switzerland.
    Any pension paid by a country, or one of its political 
subdivisions or local authorities, to an individual for 
services rendered to the payor generally is taxable only in 
that country. However, such pensions are taxable only in the 
other country if the individual is both a resident and a 
national of that other country.
    These rules regarding government remuneration and pensions 
are exceptions to the saving clause, pursuant to Article 1, 
paragraph 3(b) of the proposed treaty. Consequently, the saving 
clause does not apply to benefits conferred by this article to 
an individual who is neither a U.S. citizen nor a U.S. green-
card holder. Thus, for example, the United States would not tax 
the compensation of a Swiss citizen who is not a U.S. green-
card holder but who resides in the United States to perform 
services for the Swiss Government.
    If a country or one of its political subdivisions or local 
authorities is carrying on a business (as opposed to functions 
of a governmental nature), the provisions of Articles 15 
(Dependent Personal Services), 16 (Directors' Fees), and 18 
(Pensions and Annuities) will apply to remuneration and 
pensions for services rendered in connection with such 
business.
    Under the proposed treaty, social security payments and 
other public pensions paid by one country to an individual 
resident in the other country may be taxed in the residence 
country. \11\ In addition, such payments may be taxed in the 
source-country according to the laws of such country, but such 
tax may not exceed 15 percent of the gross amount of the 
payment. In contrast, the U.S. model provides that social 
security payments may be taxed only in the source-country. The 
Technical Explanation states that the deviation from the U.S. 
model is necessary in this case to mitigate the double taxation 
of Swiss residents receiving U.S. social security benefits that 
arises under the two countries' tax regimes applicable to such 
amounts.
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    \11\ The proposed protocol provides that the term ``other public 
pensions'' is intended to refer to United States tier 1 Railroad 
Retirement benefits.
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Article 20. Students and Trainees

    The treatment provided to students and trainees under the 
proposed treaty corresponds generally to the treatment provided 
under the present treaty.
    Under the proposed treaty, a student, apprentice, or 
business trainee who visits the other country (the host 
country) for the purpose of full-time education or training, 
and who immediately before that visit is or was a resident of 
the other treaty country, is exempt from tax in the host 
country on payments that he or she receives for the purpose of 
maintenance, education, or training provided that such payments 
arise from sources outside the host country. Under the U.S. 
model, the corresponding exemption for students and trainees is 
available only for a period of one year from the date the 
individual first arrives in the host country for the purpose of 
training; the proposed treaty does not contain any time 
limitation on the availability of the exemption from host-
country tax.
    This article is an exception to the saving clause, pursuant 
to Article 1, paragraph 3(b) of the proposed treaty. 
Consequently, the saving clause does not apply to benefits 
conferred by this article to an individual who is neither a 
U.S. citizen nor a U.S. green-card holder. Thus, for example, 
the United States would not tax such amounts paid to a Swiss 
citizen who is not a U.S. green-card holder but who resides in 
the United States as a full-time student.

Article 21. Other Income

    This article is a catch-all provision intended to cover 
items of income not specifically covered in other articles, and 
to assign the right to tax income from third countries to 
either the United States or Switzerland. This article is 
substantially similar to the corresponding article in the U.S. 
model.
    As a general rule, items of income of a resident of either 
country that are not otherwise dealt with in the proposed 
treaty are taxable only in the country of residence. This rule, 
for example, gives the United States the sole right under the 
treaty to tax income derived from sources in a third country 
and paid to a resident of the United States. This article is 
subject to the saving clause, so U.S. citizens who are Swiss 
residents would continue to be taxable by the United States on 
their third-country income, with a foreign tax credit provided 
for income taxes paid to Switzerland.
    The general rule just stated does not apply to income if 
the person deriving the income is a resident of one country and 
carries on business in the other country through a permanent 
establishment or a fixed base and the right or property in 
respect of which the income is paid is effectively connected 
with such permanent establishment or fixed base. In such a 
case, the provisions of Article 7 (Business Profits) or Article 
14 (Independent Personal Services), as the case may be, will 
apply. In addition, other income attributable to a permanent 
establishment or fixed base, but received after the permanent 
establishment or fixed base is no longer in existence, is 
taxable in the country where the permanent establishment or 
fixed base existed (Article 28, paragraph 7). An exception to 
this rule is provided for income from real property. Thus, for 
example, if a U.S. resident has a Swiss permanent establishment 
and the resident derives income from real property located in a 
third country that is effectively connected with the Swiss 
permanent establishment, under the proposed treaty, only the 
United States may tax such income.
    Under the proposed treaty, the rule of exclusive residence-
country tax provided in this article does not apply to income 
subject to tax in either country on wagering, gambling, or 
lottery winnings. Accordingly, each country may tax such 
winnings under its internal law. Under the U.S. model, such 
winnings are covered by the rule of exclusive residence-country 
tax.

Article 22. Limitation on Benefits

            In general
    The proposed treaty contains a provision generally intended 
to limit indirect use of the treaty by persons who are not 
entitled to its benefits by reason of residence in the United 
States or Switzerland, or in some cases, in another member 
country of the European Union or the European Economic Area, or 
in a party to NAFTA.
    The proposed treaty is intended to limit double taxation 
caused by the interaction of the tax systems of the United 
States and Switzerland as they apply to residents of the two 
countries. At times, however, residents of third countries 
attempt to use a treaty. This use is known as ``treaty 
shopping,'' which refers to the situation where a person who is 
not a resident of either country seeks certain benefits under 
the income tax treaty between the two countries. Under certain 
circumstances, and without appropriate safeguards, the 
nonresident may be able to secure these benefits indirectly by 
establishing a corporation (or other entity) in one of the 
countries, which entity, as a resident of that country, is 
entitled to the benefits of the treaty. Additionally, it may be 
possible for a third-country resident to reduce the income base 
of a treaty country resident by having the latter pay out 
interest, royalties, or other deductible amounts under 
favorable conditions either through relaxed tax provisions in 
the distributing country or by passing the funds through other 
treaty countries (essentially, continuing to treaty shop), 
until the funds can be repatriated under favorable terms.
            Summary of proposed treaty provisions
    The anti-treaty shopping article in the proposed treaty 
provides that a treaty country resident is entitled to treaty 
benefits in the other country only if it falls within one of 
several specified categories. This provision of the proposed 
treaty is in some ways comparable to the U.S. Treasury 
regulation under the branch tax definition of a qualified 
resident. \12\ However, the proposed treaty provides 
opportunities for treaty benefit eligibility which are not 
provided under that regulation.
---------------------------------------------------------------------------
    \12\ Treas. Reg. sec. 1.884-5.
---------------------------------------------------------------------------
    Generally, a resident of either country qualifies for the 
benefits accorded by the proposed treaty if such resident falls 
within one of the following categories:

  (1) An individual;
  (2) A government;
  (3) An entity that satisfies an active business test with 
            respect to a particular item of income;
  (4) An entity that satisfies a headquarters company test;
  (5) A company that satisfies a public company test;
  (6) A company, trust or estate that satisfies a predominant 
            interest test;
  (7) A qualified family foundation; or
  (8) A qualified pension trust or non-profit organization.

Alternatively, a resident that does not fit into any of the 
above categories may claim treaty benefits with respect to 
certain items of income under the derivative benefits test. 
Special rules apply to income derived by a resident of 
Switzerland in certain ``triangular'' cases described below. 
Finally, a treaty country resident is entitled to treaty 
benefits if the resident is otherwise approved by the source-
country's competent authority, in the exercise of the latter's 
discretion.
    The proposed treaty provides that the competent authorities 
are to consult with a view to developing a commonly agreed 
application of these provisions. Subject to the limitations in 
the information exchange article, the competent authorities may 
exchange such information as is necessary for carrying out 
these provisions.
            Individuals
    Under the proposed treaty, individual residents of one of 
the countries are entitled to all treaty benefits.
            Governments
    Under the proposed treaty, the two countries, political 
subdivisions and local authorities thereof, and agencies or 
instrumentalities of such countries, subdivisions or 
authorities are entitled to all treaty benefits. The definition 
of the term ``government'' contained in the Memorandum of 
Understanding for purposes of determining the country of 
residence is broader than this concept. This concept does not 
include, for example, pension trusts for current and former 
employees of a country or political subdivision.
            Entities satisfying active trade or business test

In general

    Under the active business test, treaty benefits in the 
source-country are available under the proposed treaty to an 
entity that is a resident of one treaty country if it is 
engaged in the active conduct of a trade or business in the 
residence country and the income derived from the source-
country is derived in connection with, or is incidental to, 
that trade or business. The proposed protocol adds a further 
requirement in the case of payments between related parties: 
such a payment is treated as derived in connection with a trade 
or business only if the trade or business carried on in the 
residence country is substantial in relation to the income-
producing activity carried on in the source-country.
    This active business test is applied separately to each 
item of income. Accordingly, an entity may be eligible for 
treaty benefits with respect to some but not all of the income 
derived in the source-country. In contrast, satisfaction of the 
requirements for any one of the other specified categories 
allows treaty benefits for all income derived from the source-
country.

Trade or business

    Under the proposed treaty, the active business test is 
applied by disregarding the business of making, managing, or 
holding investments for the entity's own account, unless these 
activities are banking, insurance or securities activities 
carried on by a bank, insurance company, or registered 
securities dealer, respectively. The Memorandum of 
Understanding clarifies that this rule does not affect the 
status of investment advisors or others that actively conduct 
the business of managing investments beneficially owned by 
others.
    The proposed protocol provides that the determination 
whether activities constitute an active trade or business must 
be made under all the facts and circumstances. However, it 
further provides that a trade or business generally comprises 
activities that constitute an independent economic enterprise 
carried on for profit. In order to constitute a trade or 
business, a resident's activities ordinarily must include every 
operation that is a part of, or a step in, a process by which 
an enterprise may earn income or profit. A resident is 
considered to actively conduct a trade or business if it 
regularly performs active and substantial management and 
operational functions through its own officers or employees. 
Although some of such activities may be carried out by 
independent contractors under the direct control of the 
resident, the activities of such independent contractors are 
disregarded in determining whether the resident actively 
conducts a trade or business.
    The Memorandum of Understanding clarifies that the active 
conduct of a trade or business may involve the performance of 
services as well as manufacturing or sales activities. The 
Memorandum of Understanding further clarifies that the resident 
itself may be actively conducting a trade or business or it may 
be deemed to be so engaged through the activities of related 
persons that are residents of one of the countries.

Income derived in connection with a trade or business

    Under the proposed treaty, the income eligible for treaty 
benefits under this active business test is the income derived 
from the source-country in connection with, or incidental to, 
the active conduct of a trade or business in the residence 
country. The Memorandum of Understanding clarifies that income 
is considered derived in connection with an active trade or 
business in a country if the income-producing activity in the 
other country is a line of business which is part of or is 
complementary to the trade or business conducted in the first 
country. The line of business in the first country may be 
upstream, downstream or parallel to the income-producing 
activity in the other country. The Technical Explanation states 
that it is intended that a business activity in the source-
country will be considered to form a part of a business 
activity in the other country if the two activities involve the 
design, manufacture or sale of the same products or type of 
products or the provision of similar services. The Technical 
Explanation further states that two activities will be 
considered complementary if they are part of the same overall 
industry and the success or failure of the two are 
interrelated. According to the Technical Explanation, where 
more than one business is conducted in the source-country and 
only one of such businesses forms a part of or is complementary 
to a business conducted in the residence country, the income 
attributable to that particular business must be determined for 
purposes of applying this test.
    The Memorandum of Understanding clarifies that income is 
considered to be incidental to the trade or business carried on 
in the other country if the production of such income 
facilitates the conduct of such trade or business. For example, 
interest income earned from the short-term investment of 
working capital would be considered to be incidental income.

Substantiality requirement for related party payments

    Under the proposed protocol, a payment between related 
parties is treated as derived in connection with a trade or 
business only if the trade or business carried on in the 
residence country is substantial in relation to the income-
producing activity carried on in the other country. For this 
purpose, the income recipient is related to the income payor if 
it owns, directly or indirectly, at least 10 percent of the 
shares or other comparable rights in the payor.
    The proposed protocol further provides that 
``substantiality'' will be determined based on all the facts 
and circumstances, taking into account the following factors: 
the comparative sizes of the businesses in each country 
(measured based on asset values, income and payroll expenses), 
the nature of the activities in each country, and, in cases 
where a business is conducted in both countries, the relative 
contributions to such business in each country. In making a 
determination or comparison, due regard is to be given to the 
relative sizes of the Swiss and U.S. economies.
    The Memorandum of Understanding clarifies that this 
substantiality requirement is intended to prevent treaty-
shopping abuses involving the attempt to qualify for treaty 
benefits by engaging in de minimis business activities in the 
source-country that have little economic cost or effect with 
respect to the business as a whole.
            Headquarters companies
    Under the proposed treaty, entities that are recognized 
headquarters companies for multinational corporate groups are 
eligible for treaty benefits. The Technical Explanation states 
that the headquarters company need not own shares in the 
companies it supervises. For this purpose, an entity is a 
recognized corporate headquarters company if it meets the 
following seven requirements.
    First, the company must provide in its residence country a 
substantial portion of the overall supervision and 
administration of a group of companies. Such activities may 
include group financing, but such financing cannot be the 
principal activity. The group of companies so supervised and 
administered may be part of a larger multinational corporate 
group. Moreover, the Technical Explanation states that the 
supervised group is not required to include companies resident 
in the other country.
    According to the Technical Explanation, while other 
activities could be part of the supervision and administration 
function, a company will be considered to engage in supervision 
and administration only if it engages in some of the following 
activities: group financing, pricing, marketing, internal 
auditing, internal communications, and management. The 
Technical Explanation further states that a company will 
satisfy the requirement that it perform a substantial portion 
of the overall supervision and administration of a group only 
if its supervision and administration activities are 
substantial in relation to such activities performed for the 
same group by other entities. However, the standard for 
``substantial '' is not specified.
    Second, the group of companies must include corporations 
resident in and engaged in business in at least five countries 
and the business activities carried on in each of the five 
countries (or five groupings of countries) must generate at 
least 10 percent of the gross income of the group. For purposes 
of this rule, income from multiple countries may be aggregated 
as long as there are at least five individual countries or 
groupings that each satisfy the 10-percent requirement. If this 
requirement is not satisfied for a particular year, it will be 
deemed to be satisfied if it is met based on an averaging of 
the gross income of the preceding four years.
    Third, the business activities carried on in any single 
country other than the headquarters company's country of 
residence must generate less than 50 percent of the group's 
gross income. If this requirement is not satisfied for a 
particular year, it will be deemed to be satisfied if it is met 
based on an averaging of the gross income of the preceding four 
years.
    Fourth, no more than 25 percent of the company's gross 
income may be derived from the other country. If this 
requirement is not satisfied for a particular year, it will be 
deemed to be satisfied if it is met based on an averaging of 
the gross income of the preceding four years.
    Fifth, the company must have and exercise independent 
discretionary authority to carry out the overall supervision 
and administration functions. The Technical Explanation states 
that this determination is made separately for each function.
    Sixth, the company must be subject to generally applicable 
tax rules in its residence country. The Technical Explanation 
states that this requirement should be understood to mean that 
the company must be subject to the tax rules applicable to a 
company engaged in the active conduct of a trade or business. 
Accordingly, the Technical Explanation states that if the 
company is subject to special tax rules applicable to 
headquarters companies, it would not be considered to be a 
recognized headquarters company.
    Seventh, the income derived in the other country must be 
derived in connection with, or must be incidental to, the 
business activities conducted in other countries. The Technical 
Explanation states that this determination is made under the 
principles set forth with respect to the active business test.
            Public companies
    Under the proposed treaty, a company is entitled to treaty 
benefits if sufficient shares in the company are traded 
actively enough on a suitable stock exchange. This rule is 
similar to the branch profits tax rules in the Code under which 
a company is entitled to treaty protection from the branch tax 
if it meets such a test or if it is the wholly-owned subsidiary 
of certain publicly traded corporations resident in a treaty 
country.

Publicly traded companies

    A company that is a resident of Switzerland or the United 
States is entitled to treaty benefits if the principal class of 
its shares is primarily and regularly traded on a recognized 
stock exchange. Thus, such a company is entitled to the 
benefits of the treaty regardless of where its actual owners 
reside.
    The term ``recognized stock exchange'' means any Swiss 
stock exchange on which regular dealings in shares take place; 
any stock exchange registered with the Securities and Exchange 
Commission as a national securities exchange for the purposes 
of the Securities Exchange Act of 1934; the NASDAQ System owned 
by the National Association of Securities Dealers; the stock 
exchanges of Amsterdam, Frankfurt, London, Milan, Madrid, 
Paris, Tokyo and Vienna; and any other stock exchange agreed 
upon by the competent authorities of the two countries.
    The term ``principal class of shares'' is not defined in 
the proposed treaty. However, the Technical Explanation states 
it will be interpreted by the United States to mean the class 
of shares that represents the majority of the voting power and 
value of the company. If no single class of shares accounts for 
more than half of the company's voting power and value, then 
this test will be applied with respect to a group of two or 
more classes of the company's shares that accounts for more 
than half of the company's voting power and value. In this 
regard, it is necessary only that one such group be primarily 
and regularly traded on a recognized stock exchange.
    The term ``regularly traded'' also is not defined in the 
proposed treaty. This term therefore is defined by reference to 
the domestic laws of the country from which benefits are being 
sought. The Technical Explanation states that, in the case of 
the United States, the term is understood to have the meaning 
it has under U.S. internal law: trades in the class of shares 
must be made in more than de minimis quantities on at least 60 
days during the taxable year and the average number of shares 
traded during the year must be at least 10 percent of the 
average number of shares outstanding.
    The Technical Explanation further states that this 
requirement can be met by trading on any one or more of the 
recognized stock exchanges.

Subsidiaries of publicly traded companies

    A company that is a resident of Switzerland or the United 
States is entitled to treaty benefits if the ultimate 
beneficial owners of a predominant interest in such company are 
one or more companies, the principal classes of the shares of 
which are traded as described above. The Technical Explanation 
states that this predominant interest requirement will be 
interpreted consistently with the predominant interest test 
described below. This generally requires a direct or indirect 
interest of more than 50 percent. The Memorandum of 
Understanding clarifies that a subsidiary that qualifies under 
this rule must be a subsidiary of a resident of one of the 
countries.
            Entities satisfying predominant interest test
    Under the proposed treaty, a company, trust, or estate that 
is resident in one of the countries is entitled to treaty 
benefits unless one or more persons who are not entitled to 
benefits are, in the aggregate, the ultimate beneficial owners 
of a predominant interest, in the form of a participation or 
otherwise, in such entity. The proposed protocol provides that 
for this purpose the countries will take into account not only 
equity interests that such persons have in the entity but also 
other contractual interests such persons have in the entity and 
the extent to which such persons receive (or have the right to 
receive) directly or indirectly payments from such entity that 
reduce the amount of the taxable income of such entity. The 
payments referred to include interest and royalties but not 
arm's-length payments for services or for the purchase or use 
of, or right to use, tangible property in the ordinary course 
of business. These payments and interests other than equity 
interests are taken into account only to deny benefits to an 
entity that would otherwise qualify under this predominant 
interest test when equity interests only are taken into 
account.
    The Technical Explanation states that a predominant 
interest is a direct or indirect interest of more than 50 
percent. If the persons not entitled to treaty benefits own a 
predominant interest in the equity of the entity, the entity is 
not entitled to treaty benefits. Only if persons not entitled 
to treaty benefits do not own a predominant interest in the 
equity of the entity is an inquiry made into the ownership of 
payments and interests other than equity.
    The Memorandum of Understanding includes a series of 
examples illustrating the application of this test.
            Swiss family foundations
    Under the proposed treaty, a family foundation resident in 
Switzerland is entitled to treaty benefits, unless (1) the 
founder or the majority of the beneficiaries are not 
individuals resident in one of the treaty countries or (2) 50 
percent or more of the foundation's income could benefit 
persons who are not individuals resident in one of the treaty 
countries. The Technical Explanation states that a family 
foundation that distributes all its income to U.S. and Swiss 
residents would not qualify under this rule if there is no 
restriction that would prevent the possibility of a 
distribution to other non-qualifying persons.
            Tax-exempt organizations
    Under the proposed treaty, an entity is entitled to treaty 
benefits if it is a pension trust or nonprofit organization 
resident in one of the countries provided that more than half 
the beneficiaries, members, or participants, if any, in the 
organization are persons entitled to benefits under the 
proposed treaty (other than under the active business or tax-
exempt organizations tests). This rule applies to organizations 
maintained exclusively to administer or provide pensions, 
retirement or employee benefits and established by or sponsored 
by a resident of such country and to not-for-profit 
organizations established and maintained for religious, 
charitable, educational, scientific, cultural or other public 
purposes, provided that such organization by reason of its 
nature as such generally is tax-exempt in its residence 
country.
            Derivative benefits rule
    The proposed treaty contains a reciprocal derivative 
benefits rule. This rule effectively allows a Swiss company, 
for example, to receive ``derivative benefits'' in the sense 
that it derives its entitlement to U.S. tax reductions in part 
from the U.S. treaty benefits to which its owners would be 
entitled if they earned the income directly. If the 
requirements of this rule are satisfied, a company that is 
resident in one of the countries will be entitled to the 
benefits of the proposed treaty under the dividends, interest, 
and royalties articles.
    First, the company must satisfy an ownership test. Under 
this test, the ultimate beneficial owners of more than 30 
percent of the aggregate vote and value of all the company's 
shares must be persons that are resident in that country and 
that are entitled to benefits under the proposed treaty (other 
than under the active business or tax-exempt organizations 
tests). The Technical Explanation states that only direct 
ownership is taken into account for purposes of this test.
    Second, the company must satisfy a derivative benefits 
test. Under this test, the ultimate beneficial owners of more 
than 70 percent of the aggregate vote and value of all of the 
company's shares must be persons that either qualify under the 
ownership test or are qualifying persons that are residents of 
member states of the European Union or the European Economic 
Area or parties to NAFTA. For this purpose, a person is a 
qualifying person only if the person (1) is a resident of a 
country with which the other country has a comprehensive income 
tax treaty and is entitled to all the benefits of such treaty; 
(2) would qualify for benefits (other than under the active 
business or tax-exempt organizations tests) if the person were 
a resident of the first treaty country; and (3) would be 
entitled to a rate of tax in the other country under a treaty 
between such country and the person's country of residence that 
is at least as low as the rate applicable under the proposed 
treaty.
    Third, the company must satisfy a base reduction test. 
Under this test, the deductible expenses paid or payable by the 
company for its preceding fiscal period to persons that do not 
qualify for treaty benefits must be less than 50 percent of the 
company's gross income for the period. If the company's first 
fiscal period is at issue, this test is applied based on the 
current fiscal period. The term ``gross income'' is not 
defined. The Technical Explanation states that, in the case of 
the United States, the term will be defined as gross receipts 
less cost of goods sold.
            Triangular cases
    Under present laws and treaties that apply to Swiss 
residents, it is possible for profits of a permanent 
establishment maintained by a Swiss resident in a third country 
to be subject to a very low aggregate rate of Swiss and third-
country income tax. The proposed treaty, in turn, eliminates 
the U.S. tax on several specified types of income of a Swiss 
resident. In a case where the U.S. income is earned by a third-
country permanent establishment of a Swiss resident (the so-
called ``triangular case'') the proposed treaty could have the 
potential of helping Swiss residents to avoid all (or 
substantially all) taxation, rather than merely avoiding double 
taxation.
    The Technical Explanation provides that although the 
proposed treaty is drafted reciprocally with respect to this 
issue, these rules have no application to the United States 
because the United States does not exempt the profits of a U.S. 
company attributable to its third-country permanent 
establishment.
    The proposed treaty includes a special rule designed to 
prevent the proposed treaty from reducing or eliminating U.S. 
tax on income of a Swiss resident in a case where no other 
substantial tax is imposed on that income. Under the special 
rule, the United States is permitted to tax dividends, 
interest, and royalties paid to the third-country permanent 
establishment at the rate of 15 percent. In addition, under the 
special rule, the United States is permitted to tax other types 
of income without regard to the treaty.
    In order for the special rule to apply, three conditions 
must be satisfied. First, a Swiss enterprise must derive income 
from the United States. Second, such income must be 
attributable to a permanent establishment that the Swiss 
enterprise has in a third country. Third, the combined Swiss 
and third-country taxation of the item of U.S.-source income 
earned by the Swiss enterprise with the third-country permanent 
establishment must be less than 60 percent of the Swiss tax 
that would be imposed if the income were earned by the same 
enterprise in Switzerland and were not attributable to the 
permanent establishment.
    The special rule does not apply to royalties received as 
compensation for the use of, or the right to use, intangible 
property produced or developed by the third-country permanent 
establishment. The special rule also does not apply if the 
U.S.-source income is derived in connection with, or is 
incidental to, the active conduct of a trade or business 
carried on by the permanent establishment in the third country 
(other than the business of making, managing or holding 
investments for the person's own account unless these 
activities are banking, insurance or securities activities 
carried on by a bank, insurance company or registered 
securities dealer, respectively).
            Grant of treaty benefits by the competent authority
    Finally, the proposed treaty provides a ``safety-valve'' 
for a treaty country resident that has not established that it 
meets one of the other more objective tests. Under this 
provision, such a person may be granted treaty benefits if the 
competent authority of the source-country so determines after 
consultation with the competent authority of the other country.
    The Technical Explanation states that the competent 
authority of a country will base its determination on whether 
the establishment, acquisition, or maintenance of the person 
seeking benefits under the proposed treaty, or the conduct of 
such person's operations, has or had as one of its principal 
purposes the obtaining of benefits under the treaty. Thus, 
persons that establish operations in either the United States 
or Switzerland with the principal purposes of obtaining 
benefits under the proposed treaty ordinarily will not be 
granted such benefits. The Technical Explanation also states 
that the competent authorities may determine to grant all, or 
partial, benefits of the treaty.
    This provision of the proposed treaty is similar to a 
portion of the qualified resident definition under the Code 
branch tax rules, under which the Secretary of the Treasury 
may, in his sole discretion, treat a foreign corporation as a 
qualified resident of a foreign country if the corporation 
establishes to the satisfaction of the Secretary that it meets 
such requirements as the Secretary may establish to ensure that 
individuals who are not residents of the foreign country do not 
use the treaty between the foreign country and the United 
States in a manner inconsistent with the purposes of the Code 
rule (sec. 884(d)(4)(D)).
    The Memorandum of Understanding sets forth the 
understanding that certain companies will be granted treaty 
benefits. This understanding applies to a company resident in 
one of the countries if two requirements are met. First, the 
ultimate beneficial owners of at least 95 percent of the voting 
power and value of all its shares must be seven or fewer 
persons that are residents of a member state of the European 
Union or the European Economic Area or a party to NAFTA that 
meet the requirements for the derivative benefits rule. Second, 
the company's deductible expenses paid or payable for its 
preceding fiscal year to persons that are not residents of a 
member state of the European Union or the European Economic 
Area or a party to NAFTA that qualify under the derivative 
benefits must be less than 50 percent of the company's gross 
income for the period.
    However, the Memorandum of Understanding further provides 
that a company otherwise entitled to benefits pursuant to this 
understanding will be denied benefits if the company, or a 
company that controls such company, has outstanding a 
``disproportionate'' class of shares that is more than 50-
percent (by vote or value) owned by persons that are neither 
U.S. citizens nor residents of a member state of the European 
Union or the European Economic Area or a party to NAFTA that 
qualify under the derivative benefits rule. A disproportionate 
class of shares is one with terms or other arrangements that 
entitle the holders to a portion of the income derived from the 
other country that is greater than the portion such holders 
would receive absent such terms or arrangements.

Article 23. Relief from Double Taxation

            Internal taxation rules

United States

     One of the two principal purposes for entering into an 
income tax treaty is to limit double taxation of income earned 
by a resident of one of the countries that may be taxed by the 
other country. The United States seeks unilaterally to mitigate 
double taxation by generally allowing U.S. taxpayers to credit 
the foreign income taxes that they pay against U.S. tax imposed 
on their foreign-source income. An indirect or ``deemed-paid'' 
credit is also provided. Under this rule, a U.S. corporation 
that owns 10 percent or more of the voting stock of a foreign 
corporation and receives a dividend from the foreign 
corporation is deemed to have paid a portion of the foreign 
income taxes paid by the foreign corporation on its accumulated 
earnings. The taxes deemed paid by the U.S. corporation are 
included in its total foreign taxes paid for the year the 
dividend is received.
    A fundamental premise of the foreign tax credit is that it 
may not offset the U.S. tax on U.S.-source income. Therefore, 
the foreign tax credit provisions contain a limitation that 
ensures that the foreign tax credit only offsets U.S. tax on 
foreign-source income. The foreign tax credit limitation 
generally is computed on a worldwide consolidated basis. Hence, 
all income taxes paid to all foreign countries are combined to 
offset U.S. taxes on all foreign income. The limitation is 
computed separately for certain classifications of income 
(e.g., passive income and financial services income) in order 
to prevent the crediting of foreign taxes on certain high-taxed 
foreign-source income against the U.S. tax on certain types of 
traditionally low-taxed foreign-source income. Other 
limitations may apply in determining the amount of foreign 
taxes that may be credited against the U.S. tax liability of a 
U.S. taxpayer.

Switzerland

    Under Swiss law, relief from double taxation generally is 
provided under one of two methods. Under the exemption with 
progression method, foreign-source income generally is exempt 
from Swiss tax but is taken into account in determining the 
Swiss tax rates applicable to other income. Under the deduction 
approach, the foreign tax is deducted as an expense and only 
the net foreign-source income is subject to Swiss tax. The 
deduction method generally applies to dividends, interest and 
royalties.
            Proposed treaty rules

Overview

    Unilateral efforts to limit double taxation are imperfect. 
Because of differences in rules as to when a person may be 
taxed on business income, a business may be taxed by two 
countries as if it is engaged in business in both countries. 
Also, a corporation or individual may be treated as a resident 
of more than one country and may be taxed on a worldwide basis 
by both.
    The double tax issue is addressed in part in other articles 
of the proposed treaty that limit the right of a source-country 
to tax income. This article provides further relief where both 
Switzerland and the United States would otherwise still tax the 
same item of income. This article is not subject to the saving 
clause, so that the United States waives its overriding taxing 
jurisdiction to the extent that this article applies.
    The present treaty provides separate rules for relief from 
double taxation for the United States and Switzerland. The 
present treaty generally provides for relief from double 
taxation of U.S. residents and citizens by requiring the United 
States to permit a credit against its tax for taxes paid to 
Switzerland. The determination of this credit is made in 
accordance with U.S. law. The present treaty generally provides 
for relief from double taxation of Swiss residents by requiring 
Switzerland to provide, in accordance with Swiss law, an 
exclusion for the items of U.S.-source income that are not 
exempt from, nor entitled to a reduced rate of, U.S. tax 
pursuant to the treaty. In the case of a U.S. citizen resident 
in Switzerland, such exclusion applies to all U.S.-source 
income. However, Switzerland reserves the right to take income 
excluded under these rules into account in determining the rate 
of Swiss tax applicable to other income.

Proposed treaty limitations on Swiss internal law

    Under the proposed treaty, the relief rules applicable in 
the case of Switzerland depend upon the particular type of 
income that is subject to U.S. tax. In general, the proposed 
treaty requires Switzerland to exempt from its internal tax 
income derived by a Swiss resident that is subject to U.S. tax 
under the proposed treaty. However, gains from U.S. real 
property will be eligible for this exemption only if the Swiss 
resident demonstrates that such gains are subject to actual tax 
in the United States. Moreover, as under the present treaty, 
Switzerland may employ its ``exemption with progression'' 
method with respect to the income taxed in the United States; 
under this method, the exempt income is taken into account for 
purposes of determining the rate of Swiss tax applicable to the 
remainder of the resident's income.
    In the case of dividends that are derived by a Swiss 
resident and that are taxable under Article 10 of the proposed 
treaty, the proposed treaty provides that Switzerland will 
provide relief from its tax upon request. This relief may take 
the form of (1) a deduction from the Swiss tax on such 
dividends for an amount equal to the U.S. tax imposed in 
accordance with Article 10 (Dividends), provided that such 
deduction will not exceed the pre-relief portion of the Swiss 
tax with respect to the income taxed in the United States, (2) 
a lump sum reduction of the Swiss tax, or (3) a partial 
exemption from the Swiss tax on such dividends, representing at 
least the deduction of the U.S. tax from the gross amount of 
the dividends. The applicable relief and procedures are 
determined in accordance with Swiss law.
    In the case of income derived by a Swiss resident that 
represents REIT dividends not eligible for a reduction in U.S. 
tax, contingent interest and excess inclusions with respect to 
a residual interest in a REMIC not eligible for a reduction in 
U.S. tax, and other income taxed in the United States because 
it does not qualify for treaty benefits under Article 22 
(Limitation on Benefits), Switzerland allows a deduction of the 
U.S. tax from the gross amount of such income.
    In the case of U.S. social security benefits and other 
public pensions derived by a Swiss resident and subject to U.S. 
tax, Switzerland will allow a deduction from Swiss taxable 
income for an amount equal to the U.S. tax, plus an exemption 
from Swiss tax for one-third of the net amount of such payment. 
This rule, together with the rules of Article 19 (Government 
Service and Social Security), are designed to provide relief 
from the double taxation of such U.S. benefits of a Swiss 
resident.

Proposed treaty limitations on U.S. internal law

    The proposed treaty generally provides that the United 
States will allow a U.S. citizen or resident a foreign tax 
credit for the taxes imposed by Switzerland. The proposed 
treaty also requires the United States to allow a deemed-paid 
credit, with respect to Swiss tax, to any U.S. corporate 
shareholder of a Swiss company that receives dividends from 
such company if the U.S. company owns 10 percent or more of the 
voting stock of the Swiss company.
    The credit generally is to be computed in accordance with 
the provisions and subject to the limitations of U.S. law (as 
those provisions and limitations may change from time to time 
without changing the general principle of this credit 
provision). This provision is similar to those found in the 
U.S. model and many other U.S. income tax treaties.
    For purposes of applying the U.S. foreign tax credit rules, 
Swiss taxes covered by the proposed treaty (Article 2 (Taxes 
Covered)) are considered to be income taxes.
    The proposed treaty, like the U.S. model and other U.S. 
treaties, contains a special rule designed to provide relief 
from double taxation for U.S. citizens who are Swiss residents. 
Under this rule, Switzerland will apply the foreign tax credit 
relief provisions to a U.S. citizen who is resident in 
Switzerland as if the person were not a U.S. citizen (i.e., by 
taking into account only the amount of U.S. taxes that would be 
paid if he or she were not a U.S. citizen with respect to items 
of income that, under the proposed treaty, are either exempt 
from U.S. tax or are subject to a reduced rate of tax when 
derived by a Swiss resident who is not a U.S. citizen). The 
United States will then credit the income tax actually paid to 
Switzerland. The proposed treaty recharacterizes the income 
that is subject to Swiss taxation as foreign-source income for 
purposes of this computation. The result of this computation is 
that the ultimate U.S. tax liability of a U.S. citizen who is a 
Swiss resident, with respect to an item of income, should not 
be less than the tax that would be paid if the individual were 
a Swiss resident and not a U.S. citizen.

Article 24. Non-Discrimination

    The proposed treaty contains a comprehensive 
nondiscrimination article relating to all taxes of every kind 
imposed at the national, state, or local level. It is similar 
to the nondiscrimination articles in the U.S. model and other 
recent U.S. income tax treaties. It is broader than the 
nondiscrimination provision of the present treaty.
    In general, under the proposed treaty, one country cannot 
discriminate by imposing other or more burdensome taxes (or 
requirements connected with taxes) on nationals of the other 
country than it would impose on its nationals in the same 
circumstances. This provision applies whether or not the 
nationals in question are residents of the United States or 
Switzerland. A U.S. national who is not a resident of the 
United States and a Swiss national who is not a resident of the 
United States are not considered to be in the same 
circumstances for U.S. tax purposes.
    Under the proposed treaty, neither country may tax a 
permanent establishment of an enterprise of the other country 
less favorably than it taxes its own enterprise or resident 
carrying on the same activities. However, the proposed treaty 
further provides that nothing is this article will be construed 
as preventing the United States from imposing a branch profits 
tax. Consistent with the U.S. and OECD model treaties, a 
country is not obligated to grant residents of the other 
country any personal allowances, reliefs, or reductions for tax 
purposes on account of civil status or family responsibilities 
which it grants to its own residents.
    Each country is required (subject to the arm's-length 
pricing rules of Articles 9 (Associated Enterprises), 11 
(Interest), and 12 (Royalties)) to allow enterprises of such 
country to deduct interest, royalties, and other disbursements 
paid by them to residents of the other country under the same 
conditions that it allows deductions for such amounts paid to 
residents of the same country as the payor. The Technical 
Explanation indicates that the term ``other disbursements'' is 
understood to include a reasonable allocation of executive and 
general administrative expenses, research and development 
expenses, and other expenses incurred for the benefit of a 
group of related enterprises. Similarly, any debts of an 
enterprise that is a resident of either country to a resident 
of the other country must be deductible for the purposes of 
determining the taxable capital of the enterprise under the 
same conditions as if the debts had been contracted to a 
resident of the first country.
    The nondiscrimination rule also applies under the proposed 
treaty to enterprises of one country that are owned in whole or 
in part by residents of the other country. Enterprises resident 
in one country, the capital of which is wholly or partly owned 
or controlled, directly or indirectly, by one or more residents 
of the other country, will not be subjected in the first 
country to any taxation or any connected requirement which is 
other or more burdensome than the taxation and connected 
requirements that the first country imposes or may impose on 
its similar enterprises.
    U.S. internal law generally treats a corporation that 
distributes property to its shareholders as realizing gain or 
loss as if the property had been sold. A nonrecognition rule 
applies, however, to certain distributions of stock and 
securities of a controlled corporation. U.S. internal law also 
generally treats a corporation that distributes property in 
complete liquidation as realizing gain or loss as if the 
property had been sold to the distributee. If, however, 80 
percent or more of the stock of the corporation is owned by 
another corporation, a nonrecognition rule applies and no gain 
or loss is recognized to the liquidating corporation. Special 
provisions make these nonrecognition provisions inapplicable if 
the distributee is a foreign corporation (Code sec. 367(e)(1) 
and (2)). The proposed protocol provides that nothing in this 
nondiscrimination article will prevent the United States from 
applying Code section 367(e)(1) or (2).
    U.S. internal law generally requires a partnership that 
engages in a U.S. trade or business to pay a withholding tax 
attributable to a foreign partner's share of the effectively-
connected income of the partnership. The withholding tax is not 
the final liability of the partner, but is a prepayment of tax 
which will be refunded to the extent it exceeds a partner's 
final U.S. tax liability. No withholding is required with 
respect to a U.S. partner's share of the effectively-connected 
income of the partnership. The proposed protocol provides that 
nothing in this nondiscrimination article will prevent the 
United States from applying section Code 1446.
    The saving clause (which allows the United States to tax 
its citizens or residents notwithstanding certain treaty 
provisions) does not apply to the nondiscrimination article. 
Therefore, a U.S. citizen resident in Switzerland may claim 
benefits with respect to the United States under this article.

Article 25. Mutual Agreement Procedure

    The proposed treaty contains the standard mutual agreement 
provision, with some variation, which authorizes the competent 
authorities of the United States and Switzerland to consult 
together to attempt to alleviate individual cases of double 
taxation not in accordance with the proposed treaty. The saving 
clause of the proposed treaty does not apply to this article, 
so that the application of this article may result in a waiver 
(otherwise mandated by the proposed treaty) of U.S. taxing 
jurisdiction over its citizens or residents.
    Under this article, a resident of one country, who 
considers that the actions of one or both of the countries 
result, or will result, for him or her in taxation not in 
accordance with the proposed treaty, may present the case to 
the competent authority of the country of which he or she is a 
resident or national. The competent authority will then make a 
determination as to whether the objection appears justified. If 
the objection appears to be justified and if the competent 
authority is not itself able to arrive at a satisfactory 
solution, then the competent authority will endeavor to resolve 
the case by mutual agreement with the competent authority of 
the other country, with a view to the avoidance of taxation 
which is not in accordance with the proposed treaty. The 
Technical Explanation states that Swiss law does not permit 
competent authority relief if a request for relief is not made 
within the 10-year period after the final assessment of Swiss 
taxes; the Technical Explanation further states the United 
States will use such a 10-year period for accepting competent 
authority requests.
    The competent authorities of the countries are to endeavor 
to resolve by mutual agreement any difficulties or doubts 
arising as to the interpretation or application of the proposed 
treaty. Like the U.S. model, the proposed treaty makes express 
provision for competent authorities to mutually agree on 
various issues, including the attribution of income, 
deductions, credits, or allowances to a permanent establishment 
of an enterprise of a treaty country; the allocation of income, 
deductions, credits, or allowances; the characterization of 
particular items of income; the characterization of persons; 
the application of source rules with respect to particular 
items of income; the common meaning of a term; the application 
of domestic law with respect to penalties, fines, and interest; 
and the elimination of double taxation in cases not provided 
for in the treaty. The proposed treaty does not specify, as 
does the U.S. model, that the competent authorities may agree 
on advance pricing arrangements and increases (where 
appropriate in light of economic or monetary developments) in 
the dollar thresholds in provisions such as the artistes and 
sportsmen article and the students and trainees articles.
    The proposed treaty authorizes the competent authorities to 
communicate with each other directly for purposes of reaching 
an agreement. This provision makes clear that it is not 
necessary to go through diplomatic channels in order to discuss 
problems arising in the application of the proposed treaty. 
Under the proposed treaty, the competent authorities also are 
authorized to prescribe procedures to carry out the purposes of 
the proposed treaty.
    The proposed treaty contains a provision allowing for 
arbitration. If any difficulty arising as to the interpretation 
or application of the proposed treaty cannot be resolved by the 
competent authorities pursuant to the mutual agreement 
procedures, the case may be submitted to arbitration. This 
procedure applies only if both competent authorities and all 
affected taxpayers agree to it and the taxpayers agree in 
writing to be bound by the decision of the arbitration board. 
The decision of the arbitration board in a particular case will 
be binding on both countries with respect to such case. The 
proposed treaty provides that the procedures with respect to 
arbitration will be established in an exchange of notes between 
the two countries. The proposed treaty further provides that 
the provisions with respect to arbitration will take effect 
only after the two countries have so agreed through an exchange 
of notes.

Article 26. Exchange of Information

    The proposed treaty provides for the exchange of 
information necessary to carry out the provisions of the 
proposed treaty or for the prevention of tax fraud or the like 
in relation to the taxes covered by the proposed treaty. The 
Technical Explanation states that the ``necessary'' standard 
requires only that the information be relevant and does not 
require that the requesting country demonstrate that it would 
be unable to enforce its tax laws without such information. 
This ``relevant'' standard is consistent with the parallel 
provision in the U.S. model.
    Under the proposed treaty, information may be exchanged in 
connection with the enforcement of either country's domestic 
law only in the case of tax fraud. This means that, except for 
exchanges of information to carry out the provisions of the 
proposed treaty, information will only be exchanged in the case 
of tax fraud. Two special rules apply to exchanges of 
information in the case of tax fraud. First, the exchange of 
information is not restricted by Article 1 (Personal Scope). 
Therefore, third-country residents are covered by these 
exchange of information provisions (but only in cases of tax 
fraud). Second, where specifically requested by the competent 
authority of one country, the competent authority of the other 
country shall provide information in the form of authenticated 
copies of unedited original documents.
    For purposes of this provision, the proposed protocol 
provides that ``tax fraud'' means fraudulent conduct that 
causes (or is intended to cause) an illegal and substantial 
reduction in the amount of tax paid to one of the countries. 
Fraudulent conduct will be assumed in cases where, for example, 
a taxpayer uses a forged or falsified document or a scheme of 
lies to deceive the tax authorities. The proposed protocol 
further provides that tax fraud may include acts that, at the 
time of a request for information, constitute fraudulent 
conduct with respect to which the requested country may obtain 
information under its laws or practice. In addition, the 
proposed protocol provides that, in determining whether tax 
fraud exists in a case involving the conduct of a profession or 
business, the requested country will treat the record-keeping 
laws of the requesting country as if they were its own 
requirements. This means, for example, that if the United 
States is contemplating making a request for information from 
Switzerland with respect to tax fraud involving a profession or 
business, Switzerland would have to apply U.S. recordkeeping 
requirements (instead of Swiss recordkeeping requirements) in 
determining whether tax fraud existed. The Memorandum of 
Understanding states that this definition of tax fraud also is 
applicable for purposes of applying other means of mutual 
assistance in matters involving tax fraud in order to obtain 
assistance, such as the deposition of witnesses.
    Any information exchanged is to be treated as secret in the 
same manner as information obtained under the domestic laws of 
the country receiving the information. The exchanged 
information may be disclosed only to persons or authorities 
(including courts and administrative bodies) involved in 
assessment, collection, administration, enforcement, 
prosecution or determination of appeals with respect to the 
taxes covered by the proposed treaty. The information exchanged 
may be used only for the purposes stated above. \13\ The 
Technical Explanation states that the appropriate committees of 
the U.S. Congress and the U.S. General Accounting Office shall 
be afforded access to information for use in the performance of 
their role in overseeing the administration of U.S. tax laws. 
The Memorandum of Understanding clarifies that exchanged 
information may be disclosed in public court proceedings or 
judicial decisions.
---------------------------------------------------------------------------
    \13\ Code section 6103 provides that otherwise confidential tax 
information may be utilized for a number of specifically enumerated 
non-tax purposes. Information obtained by the United States pursuant to 
this treaty could not be used for these non-tax purposes.
---------------------------------------------------------------------------
    As is true under the present treaty and the U.S. and OECD 
models, under the proposed treaty, a country is not required to 
carry out administrative measures at variance with the 
regulations and practice of either country or which would be 
contrary to its sovereignty, security or public policy, to 
supply information which is not obtainable under the laws of 
either country, or to supply information which would disclose 
any trade, business, industrial, or professional secret or 
trade process. The Memorandum of Understanding confirms that 
Swiss bank secrecy laws do not hinder the gathering of 
documentary evidence from banks or the forwarding of such 
evidence under the proposed treaty to the U.S. competent 
authority in cases involving tax fraud.
    The proposed treaty further provides that the competent 
authorities may provide to an arbitration board (established 
pursuant to Article 25) such information as is necessary for 
the arbitration procedure. However, the limitations on 
disclosure contained in this article will apply to the members 
of the arbitration board.
    The proposed treaty also provides for administrative 
cooperation between the two countries in collecting taxes to 
the extent necessary to ensure that certain treaty benefits do 
not inure to the benefit of persons not entitled to such 
benefits. Under the proposed treaty, each country may collect 
taxes imposed by the other country as though such taxes were 
its own in order to ensure that the exemption or reduced rate 
of tax granted by the other state under the dividends, 
interest, royalties, and pensions and annuities articles will 
not be enjoyed by persons not entitled to such benefits.

Article 27. Members of Diplomatic Missions and Consular Posts

    The proposed treaty contains the rule found in other U.S. 
tax treaties that its provisions are not to affect the fiscal 
privileges of diplomatic agents or consular officials under the 
general rules of international law or the provisions of special 
agreements. Accordingly, the proposed treaty will not defeat 
the exemption from tax which a host country may grant to the 
salary of diplomatic officials of the other country. The saving 
clause does not apply in the application of this article to 
U.S. residents who are neither U.S. citizens nor green-card 
holders. Thus, Swiss diplomats who are considered U.S. 
residents generally may be protected from U.S. tax.
    The proposed treaty provides that, to the extent that 
income is not subject to tax in the receiving country because 
of the fiscal privileges granted to diplomatic agents or 
consular officers, the right to tax such income is reserved to 
the sending country. This provision does not affect the fiscal 
privileges provided under international law or special 
international agreements but rather modifies the terms 
otherwise provided in the proposed treaty in order to prevent 
such income from escaping tax in both countries.
    The proposed treaty provides a special rule for determining 
the country of residence of individuals who are members of a 
diplomatic mission, consular post, or permanent mission of one 
country located in the other country or in a third country. 
Under this rule, for purposes of the proposed treaty, such an 
individual will be deemed to be a resident of the sending 
country if (1) under international law he or she is not liable 
to tax in the receiving country on income from sources outside 
that country and (2) he or she is liable in the sending country 
to the same obligations with respect to tax on his or her total 
income as are residents of that country. Under this rule, a 
U.S. diplomat stationed in a third country would be treated as 
a U.S. resident for purposes of determining whether he or she 
is eligible for reduced rate of, or exemption from, Swiss tax 
on Swiss-source income.
    The proposed treaty does not apply to international 
organizations, organs and officials of such organizations, and 
persons who are members of a diplomatic mission, consular post 
or permanent mission of a third country present in one of the 
treaty countries, if such persons are not treated in either of 
the treaty countries as residents for purposes of the country's 
income taxes.

Article 28. Miscellaneous

    This article contains various rules that apply throughout 
the proposed treaty.
    The proposed treaty provides that it does not restrict in 
any manner any exclusion, exemption, deduction, credit, or 
other allowance accorded by internal law or by any other 
agreement between the United States and Switzerland. Thus, the 
proposed treaty will not apply to increase the tax burden of a 
resident of either the United States or Switzerland. According 
to the Technical Explanation, the fact that the proposed treaty 
only applies to a taxpayer's benefit does not mean that a 
taxpayer may select inconsistently among treaty and internal 
law provisions in order to minimize its overall tax burden. In 
this regard, the Technical Explanation sets forth the following 
example. Assume a resident of Switzerland has three separate 
businesses in the United States. One business is profitable and 
constitutes a U.S. permanent establishment. The other two 
businesses generate effectively connected income as determined 
under the, but do not constitute permanent establishments as 
determined under the proposed treaty; one business is 
profitable and the other business generates a net loss. Under 
the Code, all three businesses would be subject to U.S. income 
tax, in which case the losses from the unprofitable business 
could offset the taxable income from the other businesses. On 
the other hand, only the income of the business which gives 
rise to a permanent establishment is taxable by the United 
States under the proposed treaty. The Technical Explanation 
makes clear that the taxpayer may not invoke the proposed 
treaty to exclude the profits of the profitable business that 
does not constitute a permanent establishment and invoke U.S. 
internal law to claim the loss of the unprofitable business 
that does not constitute a permanent establishment to offset 
the taxable income of the permanent establishment. \14\
---------------------------------------------------------------------------
    \14\ See Rev. Rul. 84-17, 1984-1 C.B. 308.
---------------------------------------------------------------------------
    The proposed treaty provides that the dispute resolution 
procedures under its mutual agreement article take precedence 
over the corresponding provisions of any other agreement to 
which the United States and Switzerland are parties in 
determining whether a measure is within the scope of the 
proposed treaty. Unless the competent authorities agree that a 
taxation measure is outside the scope of the proposed treaty, 
only the proposed treaty's nondiscrimination rules, and not the 
nondiscrimination rules of any other agreement in effect 
between the United States and Switzerland, generally apply to 
that law or other measure. The only exception to this general 
rule is such national treatment or most favored nation 
obligations as may apply to trade in goods under the General 
Agreement on Tariffs and Trade. For purposes of this provision, 
the term ``measure'' means a law, regulation, rule, procedure, 
decision, administrative action, or any other form of measure.
    The proposed treaty contains a rule providing that any 
income, gain, or expense attributable to a permanent 
establishment during its existence is taken into account in the 
country where such permanent establishment was located even if 
the amounts are deferred until after the permanent 
establishment has ceased to exist. This rule applies for 
purposes of paragraphs 1 and 2 of Article 7 (Business Profits), 
paragraph 5 of Article 10 (Dividends), paragraph 3 of Article 
11 (Interest), paragraph 3 of Article 12 (Royalties), paragraph 
3 of Article 13 (Gains), paragraph 2 of Article 14 (Independent 
Personal Services), and paragraph 2 of Article 21 (Other 
Income). Under this rule, which is described above in the 
discussion of these articles, items that are attributable to a 
permanent establishment are taxed under the rules applicable to 
business profits and not the rules applicable to specific types 
of income such as interest or dividends, even if such items are 
deferred until after the termination of the permanent 
establishment.
    The proposed treaty includes a special rule regarding 
cross-border pension contributions. This rule applies where an 
individual is resident in and performs personal services in one 
of the countries but is not a national of such country. 
Contributions paid by or on behalf of such individuals to a 
pension or other retirement arrangement that is established, 
maintained, and recognized for tax purposes in the other 
country will be treated for purposes of taxation in the host 
country in the same way as a contribution to a pension or other 
retirement arrangement established, maintained, and recognized 
for tax purposes in the host country. However, this rule 
applies only if two conditions are met. First, the individual 
must not have been a resident of the host country, and must 
have been contributing to that pension or other retirement 
arrangement, immediately before he or she began exercising 
employment in that country. Second, the competent authority of 
the host country must agree that the pension or other 
retirement arrangement in the other country generally 
corresponds to an arrangement that is recognized for tax 
purposes in the host country. Under the proposed treaty, the 
benefits of this rule are applicable only for a period not 
exceeding five taxable years beginning with the first year in 
which the individual rendered personal services in the host 
country. A pension or retirement arrangement is recognized for 
tax purposes in a country if the contributions to and the 
earnings of such arrangement would qualify for tax relief in 
such country. The Technical Explanation states that this rule 
applies to an individual retirement account. The Technical 
Explanation further states that the benefits to be provided by 
the host country under this rule are limited to the benefits 
that such country would provide to arrangements recognized 
under its law.
    The proposed treaty includes a provision with respect to 
the effect of changes in the law of either country. The 
appropriate authority of either country may request 
consultations with the appropriate authority of the other 
country to determine whether an amendment to the proposed 
treaty is appropriate to address a change in the law or policy 
of either country. If, as a result of these consultations, a 
determination is made that the effect or application of the 
proposed treaty have been changed unilaterally by reason of 
domestic legislation enacted by a country such that the balance 
of the benefits provided by the proposed treaty have been 
altered significantly, such authorities will consult with a 
view toward amending the treaty to restore an appropriate 
balance. The Technical Explanation notes that any such 
amendment would be subject to Senate advice and consent to 
ratification.

Article 29. Entry Into Force

    The proposed treaty will enter into force on the day of the 
exchange of instruments of ratification. The provisions of the 
proposed treaty generally take effect for taxable years and 
periods beginning on or after the first day of January in the 
year following the date of entry into force. In the case of 
taxes payable at source, the proposed treaty generally takes 
effect for payments made on or after the first day of the 
second month following the date of entry into force.
    Taxpayers may elect temporarily to continue to claim 
benefits under the present treaty with respect to a period 
after the proposed treaty takes effect. For such a taxpayer, 
the present treaty would continue to have effect in its 
entirety for a twelve-month period from the date on which the 
provisions of the proposed treaty would otherwise take effect. 
The present treaty ceases to have effect once the provisions of 
the proposed treaty take effect under the proposed treaty.

Article 30. Termination

    The proposed treaty will continue in force until terminated 
by a treaty country. Either country may terminate it by giving 
at least six months' prior notice through diplomatic channels. 
Unlike many U.S. tax treaties, but like the U.S. model, the 
proposed treaty does not contain a rule which provides that 
either country may terminate the treaty only after it has been 
in force for five years. A termination generally will be 
effective for taxable years and periods beginning on or after 
the first day of January following the expiration of the six-
month period. With respect to taxes payable at source, a 
termination will be effective for payments made after the first 
day of January following the expiration of the six-month 
period.

               IX. Text of the Resolution of Ratification

    Resolved, (two-thirds of the Senators present concurring 
therein), That the Senate advise and consent to the 
ratification of the Convention between the United States of 
America and the Swiss Confederation for the Avoidance of Double 
Taxation with Respect to Taxes on Income, signed at Washington, 
October 2, 1996, together with a Protocol to the Convention 
(Treaty Doc. 105-8), subject to the declarations of subsection 
(a), and the proviso of subsection (b).
    (a) DECLARATIONS.--The Senate's advice and consent is 
subject to the following two declarations, which shall be 
binding on the President:
          (1) REAL ESTATE INVESTMENT TRUSTS.--The United States 
        shall use its best efforts to negotiate with the Swiss 
        Confederation a protocol amending the Convention to 
        provide the application of subparagraph (b) of 
        paragraph 2 of Article 10 of the Convention to 
        dividends paid by a Real Estate Investment Trust in 
        cases where (i) the beneficial owner of the dividends 
        beneficially holds an interest of 5 percent or less in 
        each class of the stock of the Real Estate Investment 
        Trust and the dividends are paid with respect to a 
        class of stock of the Real Estate Investment Trust that 
        is publicly traded or (ii) the beneficial owner of the 
        dividends beneficially holds an interest of 10 percent 
        or less in the Real Estate Investment Trust and the 
        Real Estate Investment Trust is diversified.
          (2) TREATY INTERPRETATION.--The Senate affirms the 
        applicability to all treaties of the constitutionally 
        based principles of treaty interpretation set forth in 
        Condition (1) of the resolution of ratification of the 
        INF Treaty, approved by the Senate on May 27, 1988, and 
        Condition (8) of the resolution of ratification of the 
        Document Agreed Among the States Parties to the Treaty 
        on Conventional Armed Forces in Europe, approved by the 
        Senate on May 14, 1997.
    (b) PROVISO.--The resolution of ratification is subject to 
the following proviso, which shall be binding on the President:
          (1) SUPREMACY OF THE CONSTITUTION.--Nothing in the 
        Treaty requires or authorizes legislation or other 
        action by the United States of America that is 
        prohibited by the Constitution of the United States as 
        interpreted by the United States.



                            A P P E N D I X

                              ----------                              

                               Department of State,
                                            Washington, DC,
                                                     April 8, 1997.
His Excellency, Carlo Jagmetti,
Ambassador of Switzerland.

Excellency:
    I have the honor to refer to the Convention Between the United 
States of America and the Swiss Confederation for the Avoidance of 
Double Taxation with Respect to Taxes on Income, with Protocol, signed 
at Washington, October 2, 1996, and to diplomatic notes, with an 
enclosed Memorandum of Understanding clarifying application of the 
Convention in specified cases, which were exchanged on the same date.
    The Memorandum of Understanding is a statement of intent setting 
forth a common understanding and interpretation of certain provisions 
of the Convention reached by the delegations of the United States and 
the Swiss Confederation acting on behalf of their respective 
governments. These understandings and interpretations are intended to 
give guidance both to the taxpayers and the tax authorities of our two 
countries in interpreting these provisions. Since the notes were 
exchanged, several additional matters regarding the interpretation of 
the Convention have been identified. In order to address these matters, 
several additions have been made to the Memorandum of Understanding. 
The Memorandum of Understanding that reflects these additions is 
enclosed herewith.
    If the understandings and interpretations in the Memorandum of 
Understanding are acceptable, this note and your note reflecting such 
acceptance will memorialize the understandings and interpretations that 
the parties have reached. I further propose that the Memorandum of 
Understanding enclosed with this Note will replace the original 
Memorandum of Understanding.
    Accept, Excellency, the renewed assurances of my highest 
consideration.

                                For the Secretary of State:

                                        Barbara J. Griffith
Enclosure: As stated
                                 ______
                                 
                 The Charge d'affaires a.i. of Switzerland,
                                    Washington, D.C., May 14, 1997.

Dear Madam Secretary:
    I have the honor to confirm the receipt of your Note dated April 8, 
1997 which reads as follows:

        ``Excellency:
          I have the honor to refer to the Convention Between the 
        United States of America and the Swiss Confederation for the 
        Avoidance of Double Taxation with Respect to Taxes on Income, 
        with Protocol, signed at Washington, October 2, 1996, and to 
        diplomatic notes, with an enclosed Memorandum of Understanding 
        clarifying application of the Convention in specified cases, 
        which were exchanged on the same date.
          The Memorandum of Understanding is a statement of intent 
        setting forth a common understanding and interpretation of 
        certain provisions of the Convention reached by the delegations 
        of the United States and the Swiss Confederation acting on 
        behalf of their respective governments. These understandings 
        and interpretations are intended to give guidance both to the 
        taxpayers and the tax authorities of our two countries in 
        interpreting these provisions. Since the notes were exchanged, 
        several additional matters regarding the interpretation of the 
        Convention have been identified. In order to address these 
        matters, several additions have been made to the Memorandum of 
        Understanding. The Memorandum of Understanding that reflects 
        these additions is enclosed herewith.
          If the understandings and interpretations in the Memorandum 
        of Understanding are acceptable, this note and your note 
        reflecting such acceptance will memorialize the understandings 
        and interpretations that the parties have reached. I further 
        propose that the Memorandum of Understanding enclosed with this 
        Note will replace the original Memorandum of Understanding.
          Accept, Excellency, the renewed assurances of my highest 
        consideration.

                                For the Secretary of State:

Attachment

The Honorable Madeleine Albright,
Secretary of State
United States Department of State
Washington, D.C.

    I have the honor to inform you that the understandings and 
interpretations in the Memorandum of Understanding are acceptable.
    Accept, Madam Secretary, renewed assurances of my highest 
consideration.

                 The Charge d'Affaires a.i. of Switzerland,
                                                 Pierre Combernous.

                               

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