Sozialversicherung und Steuer bei grenzüberschreitender Telearbeit

In dieser Folge spricht Anna Schwamberger mit Karin Spindler-Simader aus unserem Steuerrechtsteam über die neusten Änderungen hinsichtlich der Harmonisierung der Sozialversicherung auf EU-Ebene im Zusammenhang mit grenzüberschreitender Telearbeit und die steuerrechtlichen Fragestellungen, die sich daraus ergeben.

Haben Sie Fragen zu dieser Episode oder generell zu unserem Arbeitsrecht-Podcast? Wir laden Sie herzlich ein, uns unter arbeitsrecht@wolftheiss.com zu kontaktieren.

Social Security and Tax for Cross-Border Telework

Episode Summary

In this episode, Anna Schwamberger talks to Karin Spindler-Simader from our tax team about the latest changes regarding the harmonisation of social security at EU level in connection with cross-border teleworking and related tax law issues. These changes are covered by the multilateral Framework Agreement on the application of Article 16 (1) of Regulation EC 883/2004, in cases of habitual cross-border telework, which is applicable in most signatory countries since 1 July 2023.

Telework definition and social security implications

The Framework Agreement applies to employees who perform their work from their country of residence or where the employer has its registered office or place of business. It includes the following key provisions:

• In cases where less than 50% of habitual telework takes place in the country of residence, social security can – upon request – remain in the country where the employer is based.
• Cross-border telework is defined as work that is carried out in a Member State other than the one in which the employer is based.
• Telework is understood as activities that can, in practice, be performed anywhere, such as work done using a computer.

Tax considerations for employees

In cases of cross-border telework, the national tax laws of both countries and a double taxation agreement (DTA) between those countries, must be taken into account. Austria has concluded a DTA with each of the signatory states of the Framework Agreement.

As a rule, the state where the employee resides or where the centre of her/his vital interests is located, shall have the primary right to tax the employee’s salary. The state where the employee’s company is located will only tax the employee’s salary for those days during which the employee worked in that particular country.

Special rules may apply to frontier workers. Some DTAs stipulate that frontier workers may only be taxed in their country of residence. The DTA between Austria and Germany now also applies the rule for frontier workers if there is no daily commute as a result of telework.

Tax considerations for employers

The employer is generally taxed in its country of residence. However, most national tax laws and DTAs also provide for a right of taxation for permanent establishments of foreign companies (e.g. branches or factories).

It may be the case in certain countries that the home office of an employee performing telework could be considered a permanent establishment. However, if the employee performs purely support functions that do not constitute the core business of the employer (e.g. accounting, HR or IT), DTAs usually deny the existence of a permanent establishment. This means that telework performed by support or administrative staff would not be a tax risk for the employer.

It is advisable for employers to clarify with the country where an employee or employees carry out telework if a home office can be classified as a permanent establishment of the employer for tax purposes under said country’s tax law.