Sweden introduces the economic employer concept

On November 4 2020, the bill was approved by the Swedish Parliament.

The legislative changes, which will enter into force on January 1 2021, mainly result in the introduction of the economic employer concept. In short, this implies that employees subject to limited tax liability are no longer granted tax exemption for employment income according to the so-called 183 day rule if they are considered to be hired out to an employer in Sweden (i.e. to a Swedish economic employer). Foreign employers will be required to withhold tax on such renumeration.

Furthermore, as the changes enters into force, a Swedish entity is required to withhold tax of 30% on payments to foreign companies for work performed in Sweden, unless the foreign company is F-tax certified (Sw: F-skatt).

Below you will find a brief overview of the new changes.

 


Economic employer concept

Current situation
Today, an employee that is subject to limited tax liability, is not taxed on employment income as long as he/she is not present in Sweden for more than 183 days per calendar year and is paid by a foreign employer.

What applies after January 1 2021?

After the upcoming change, such tax exemption will only be granted if the situation does not qualify as “hiring of labour”. The meaning of hiring of labour is that an employee is hired out or made available by his/her foreign employer to perform work for a business in Sweden, provided that the work is performed under the management and control of the Swedish business.

In the government bill, there is some guidance regarding the assessment of whether hiring of labour is at hand. Some of the factors considered are:

  • Who has control and responsibility for the place where the work is performed
  • Who has the authority to instruct the employee
  • Who puts the tools and materials necessary for the work at the individual’s disposal

In cases where such employment income is subject to Swedish tax, the foreign employer must register as an employer in Sweden and withhold 30% tax on monthly basis unless a so called SINK-decision is in place (SINK = Special income tax for non-residents). With this decision in place, 25% should be withheld. The foreign employer will also, depending on the circumstances, be liable to pay social security contributions.

Are there any exceptions?

The new rule come with an exception, which imply that no hiring out of labour is at hand if the stay in Sweden amounts to a maximum of 15 working days in a row, and the total number of working days amount to a maximum of 45 per calendar year. Days in Sweden during weekends and leisure are not included. This means that no assessment whether the Swedish company should be regarded as an economic employer needs to be done in the cases that qualify for the exception.

 


Requirement for withholding tax when paying invoices and wages

Current situation

Swedish entities are not obliged to withhold tax upon payment of invoices from foreign entities without a permanent establishment, for work performed in Sweden.

Foreign employers without a permanent establishment in Sweden are not required to withhold tax on wages. Such tax is instead paid directly to the Swedish Tax Agency by the employee.

What applies after January 1 2021?

After the changes enter into force, Swedish entities will be required to withhold tax of 30 % on payments to foreign entities for work performed in Sweden, if the recipient is not F-tax certified. Should the recipient not be subject to tax in Sweden, the Swedish Tax Agency will make a reimbursement of the tax withheld at source. However, such a tax refund will not be made until the following year.

Foreign entities without a permanent establishment in Sweden will be required to withhold tax (30% as a general rule or 25% SINK tax) on payment to employees for work performed in Sweden, register as an employer with the Swedish Tax Agency and submit PAYE tax returns on individual level, if the work is subject to tax.

Important considerations

As a Swedish entity with foreign subcontractors, it is important to review whether those are F-tax certified. If a payment recipient is not, the payer is obliged to withhold tax, which for instance could imply cash flow issues.

For foreign employers without a permanent establishment in Sweden, the administrative burden will increase significantly. If your business will be affected by the new rules, it is therefore recommended to review your internal policies and practises to comply with the new regulations. We would naturally be happy to assist you in this.

Obligations for foreign employers to provide information in order to determine tax liability

What applies after January 1 2021?

The amendment also increases the exposure towards Swedish corporate tax liability for foreign entities.

After the changes, a foreign entity without a permanent establishment will need to provide the Swedish Tax Agency with information regarding what type of activity that has taken place in Sweden, under how long time that activity was performed and other information of relevance. However, this only applies to:

  • Entities approved for F-tax.
  • Entities obliged to withhold tax from payment of work.
  • Entities obliged to provide equipment so that an electronic personnel register can be kept on a construction site.

Please note that the coming changes on information liability will impact many foreign entities who will need to register for F-tax and employer withholding obligations.

How could this affect you?

If the Swedish Tax Agency deems that a foreign entity has a permanent establishment in Sweden, that entity is obliged to file a tax return and pay Swedish corporate tax on attributable profits. This also implies that the 183 day rule is not applicable for employees of the entity, even if the situation is not seen as hiring of labour. We therefore recommend that the risk of permanent establishment is evaluated and mitigated.

If you want to discuss how the new guidelines may affect you or your business, you are much welcome to contact us.

Anders Lagerholm
Global Mobility Services
Pernilla van der Capellen
Global Mobility Services