On 25 November 2024, the Federal Supreme Court issued a ruling (9C_168/2023 and 9C_176/2023) that contradicted the Federal Tax Administration’s (FTA) previous practice regarding securities transfer tax and employee participation plans. Against this background, on 5 February 2026 the FTA published a notice setting out its revised administrative practice on securities transfer tax for employee participation plans, along with certain clarifications. These apply retroactively from 25 November 2024, the date on which the Federal Supreme Court ruling was published. In its communication, the FTA distinguishes between different categories of cases, which are outlined briefly below.
For the transfer of employee shares to be subject to securities transfer tax, a securities dealer must be involved, either directly or indirectly as a broker, and the transfer must be made in exchange for consideration (Art. 13 para. 1 of the Federal Act on Stamp Duty (FaSD; SR 641.10)).
The key change in administrative practice concerns employee participation plans involving performance share units (PSUs) or restricted share units (RSUs), where shares are subsequently allocated to employees free of charge. This case was the subject of the aforementioned Federal Supreme Court ruling. According to the Federal Supreme Court, since the allocation of shares to employees is free of charge in this case, it is not subject to securities transfer tax. The FTA has now officially published this as an adjustment to previous administrative practice. According to the communication, it also applies to employee participation plans under which employees receive shares from their employer free of charge (i.e. without payment, salary deduction, or any other form of consideration).
The FTA also states that, in the case of shares purchased at preferential prices or through the exercise of employee options, securities transfer tax is payable only on the actual purchase or exercise price. Contrary to previous administrative practice, any monetary advantage (i.e. the difference to the market value) is not subject to securities transfer tax. However, if remuneration is paid wholly or partly in the form of shares (e.g. share bonuses), securities transfer tax is due on the agreed equivalent value of the shares.
Primary market transactions (i.e. the issuance of new shares) for the purpose of servicing employee participation plans are exempt from securities transfer tax.
Given the different treatment depending on the specific circumstances of the new administrative practice, affected companies are advised to review how employee participation plans are treated for securities transfer tax purposes. Additionally, it should be clarified whether any corrections are required to the declared and settled securities transfer tax on employee share transactions since 25 November 2024.
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