瑞士竞业限制补偿金收入适用税收协定案引发的思考

Reflections on the Application of Tax Treaties in the Case of Non-competition Compensation in Switzerland

竞业限制是通过对劳动者自由择业权利进行一定程度的制约来保护商业秘密的一种手段,制约对象包括在职职工和离职职工。离职职工须履行竞业限制协议中的相关义务,用人单位支付其一定的补偿金作为补偿。目前,我国尚未明确在税收层面如何判定竞业限制补偿金收入的性质,并据以适用税收协定的问题。本文通过对瑞士一起竞业限制补偿金适用税收协定案例进行分析,结合我国相关税收征管实践,对完善竞业限制补偿金税收处理提出相关建议。

Competition restriction, which restricts the right of workers to choose their jobs to a certain extent, is a means of protecting trade secrets. The restriction targets both at in-service employees and former employees. For the latter, he/she shall fulfill the relevant obligations set in the non-competition agreement and the employer must pay a certain amount of compensation as the price. It is not quite clear in China how to determine the nature of the income of the non-competition compensation and apply the tax treaty accordingly. The paper analyzes a case of the application of tax treaty to non-competition compensation in Switzerland, and puts forward suggestions on improving the tax treatment of non-competition compensation based on practices of tax collection and administration in China.