Tax & Legal News EDITION 1 - Deloitte
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
Tax & Legal News EDITION 1
2022Tax & Legal News | Breaking News
Renewed COVID-19-related Measures to
defer Tax Payments
Due to the current COVID-19 situation In addition, interest on tax deferrals will not Summary
and the new protective measures to be imposed until 31/1/2022. From 1/2/2022 In order to prevent the COVID-19-related
prevent an emergency situation in the to 30/6/2024 the interest rate on tax negative economic consequences, renewed
intensive care units (“4th lockdown”), deferrals will be 2 % above the applicable arrangements to defer tax payments have
the Federal Ministry of Finance (BMF) base rate, which currently is at 1.38 % per been granted. The tax offices are supposed
expects that in many economic areas a year. to grant all tax deferral requests filed
sudden decrease in sales and a liquidity between 22/12/2021 and 31/12/2021 –
shortage will occur. In order to prevent COVID-19 installment payment model regardless the legal requirements regarding
these negative economic consequences According to the currently applicable Sec 212 Fiscal Federal Code – mandatorily
of the COVID-19 pandemic and to regulations regarding the COVID-19 until 31/1/2022. In addition, interest on
enable entrepreneurs to bridge the installment payment model, a redistribution tax deferrals will not be imposed until
current situation, the government of the installment payments in the first 31/1/2022.
enacted new COVID-19-related phase (1/7/2021 until 30/9/2022) could
measures to defer tax payments. be requested once. In order to enable all Furthermore, taxpayers now have an
entrepreneurs to fulfill their obligations additional option to redistribute their
This new legislative package includes regarding the monthly installment installment payments regarding the
special tax deferral arrangements payments, an additional request to COVID-19 installment payment model in
(simplified application; no deferral interests redistribute the installment payments will the first phase. As a result, the installment
until 31/1/2022) and the possibility of tax be granted. Thus, taxpayers should be able payments can in total be redistributed two
credits repayments despite tax liabilities to redistribute their installment payments times within the first phase. This measure
until 31/12/2021. Furthermore, the option through the first phase two times. should help the entrepreneurs to bridge
to redistribute the installments according to liquidity shortages and to ensure they can
the COVID-19 installment payment model in In addition, taxpayers who have applied fulfill their payment obligations.
phase 1 for a total of two times (previously for the COVID-19 installment payment
this was possible once only) will be granted. model by June 2021 will – in line with the tax Last but not least, the taxpayers will be
deferral interests – not be obligated to pay allowed to request a tax credit repayment
Simplified tax deferrals interest from 22/11/2021 until 31/1/2022. until 31/12/2021 regardless of a tax liability
Already in previous periods of the COVID-19 in the tax account and regardless of a tax
pandemic deferrals of tax liabilities could Repayment of tax credits deferral.
be applied under simplified conditions Furthermore, as was already possible
to prevent negative economic effects (as before 1/10/2020, taxpayers will be allowed Robert Rzeszut
already reported: Extension of COCID-19 to request a repayment of tax credits rrzeszut@deloitte.at
Payment Facilities ). Due to the current between the period from 22/11/2021 to
critical situations, deferrals of tax liabilities 31/12/2021, regardless of tax deferrals Philip Predota
shall be granted under the same terms and tax liabilities in their tax account. ppredota@deloitte.at
and conditions – based on previous However, a repayment request regarding
tax deferral arrangements, which were self-assessment taxes (e.g. tax credit
applicable until 30/6/2021. Therefore, tax regarding monthly VAT return) has to be
authorities are supposed to grant all tax filed via FinanzOnline on the same day
deferrals filled between 22/11/2021 and the tax return is filed. In the case of other
31/12/2021 mandatorily (no discretion) tax credits (e.g. assessed income tax
until 31/1/2021, regardless of whether the credits) the repayment request can be filed
immediate payment of the taxes constitutes within one month after the tax credit was
a significant hardship for the taxpayer or assessed.
whether the collectability of the taxes would
be endangered by the deferral. Those
deferral applications that have already been
submitted since 22/11/2021, but before the
new arrangements entered into legal force,
must also be accepted mandatorily by the
tax offices.
2Tax & Legal News | Breaking News
New Turnover Loss Bonus III
(“Ausfallsbonus III”)
The already familiar turnover loss turnover and maximize the turnover loss Which corona-grants reduce the
bonus has been extended for the bonus. What is new, is that penalties due to maximum amount of EUR 2,3 Mio?
periods November 2021 until March the failure to comply with corona measures The following corona-grants must be taken
2022. In comparison to the turnover lead to the loss of the turnover loss bonus into account:
loss bonus I (“Ausfallsbonus I”) for III (eg repeated failure of entry checks).
• Turnover replacement (II);
the periods November 2020 until June
2021 and to the turnover loss bonus II How to calculate the loss of turnover? • Fix cost bonus 800.000;
(“Ausfallsbonus II”) for the periods The turnover loss is calculated by
• Turnover loss bonus I and II;
July 2021 until September 2021 the determining the difference between the
turnover loss bonus III (“Ausfallsbonus turnover of the period under observation • Covid-19-loan guarantees to the extent of
III”) has some new requirements in and the comparison period. The period 100% that have not yet been repaid;
addition to the already known. These under observation includes the calendar
• Covid-19-grants from federal states,
are described below: months between November 2021 and
municipals or regional economic or
March 2022. For the months of November
tourism funds;
Who is entitled to apply for the 2021, December 2021 and March 2022, the
turnover loss bonus III? corresponding calendar months from 2019 • Certain Covid-19 grants from the Non-
Companies can request the turnover loss are considered as comparison period. For Profit-Organization-fund.
bonus III with a turnover loss of at least the months of January and February 2022,
40 %, whereby for the calendar months the corresponding months from 2020 are Those grants must be added up and are
November and December 2021 a loss of considered as comparison period. reducing the maximum amount of
30 % is sufficient. EUR 2,3 Mio.
How high is the replacement rate?
In addition, the following requirements The replacement rate depends on the It is not required to consider the short-time
must be fulfilled: industry and is between 10 % (e.g. car work bonus, fix cost bonus I, 90 %- and
dealers) and 40 % (e.g. gastronomy). 80 % guarantees of the AWS or the ÖHT
• Headquarter or establishment in Austria;
The turnover loss bonus III is capped at and grants from the hardship fund. It is now
• Operational activity in Austria with EUR 80,000 per calendar month. However, also clarified that the turnover loss bonus III
income from self-employment or the amount from the turnover loss bonus does not reduce the maximum amount of
business income; and short-time work cannot exceed the an already granted fix cost bonus 800.000
turnover of the comparison period. as well as an already granted turnover loss
• no insolvency proceedings and no fiscal
bonus II in the amount of EUR 1,8 Mio.
penalties due to intentional tax evasion
The maximum amount paid-out per
in the last five years (unless it is only a
company is capped at EUR 2,3 Mio. Certain Is the turnover loss bonus III also
fine not exceeding EUR 10.000 or it only
corona-grants must be deducted from this granted to start-ups?
concerns a minor fiscal offense which is
bonus (see below). For companies that were Companies that have already achieved
called a “Finanzordnungswidrigkeit”);
in financial difficulties on 31 December 2019 a turnover before 1 November 2021 are
• Not more than 3 % of the workers are special regulations apply (except for small-/ entitled to apply. There are exceptions
dismissed (only applies to companies micro-businesses). In such cases, the to this rule if an existing business is
with over 250 workers), unless there is an general maximum amount is EUR 200.000. transferred for certain reasons (eg
appropriate explanation; retirement of previous owner and handover
How and until when is it possible to to close relatives) after the specified
• Execution of damage-reducing measures
request the turnover loss bonus III? deadline. In cases of a handover of existing
to minimize the turnover loss;
The turnover loss bonus III can be businesses, the comparison turnover
• No profit distributions between requested from the 10th of the observation is based on the respective comparable
1 December and 30 June 2022. period following month until the 9th of the economic unit. In case of start-ups without
observation period fourth following month. having revenues in the comparison period,
As with the turnover loss bonus II, there is Hence, for November 2021 the filing of the average of the monthly revenue from
also an exclusion criterion for companies the application is already possible since the first-time revenues were achieved is
that, despite having the opportunity of 10 December 2021.The application may used as a basis for comparison.
short-time work and maintenance of the be filed by the company itself or the tax
business model, have reduced the number advisor.
of employees with the aim to lower the
3Tax & Legal News | Breaking News Where can I find more details? More details can be found in the relevant guideline as well as under the FAQ of the BMF, which are continuously updated and expanded (only available in German). Conclusion The turnover loss bonus III is intended to provide new liquidity relatively easily and quickly to companies affected by decrease in turnover. In case the turnover loss amounts to 40 % (or 30 % for the months of November and December 2021), a replacement rate of between 10 % and 40 % applies. The turnover loss bonus is capped at EUR 80,000 per month. Caution is advised concerning new specifications (eg profit distributions between 1 December 2021 and 30 June 2022 are harmful as well as certain penalties due to the failure to comply with Corona measures). Clemens Klinglmair cklinglmair@deloitte.at 4
Tax & Legal News | Breaking News
New Tax Regulations for Christmas
Vouchers, Meal Vouchers and the
Corona Bonus
On December 16, 2021, tax regulations Meal vouchers now also in the home
regarding Christmas vouchers instead office
of a Christmas party, meal vouchers as Changes will also be made regarding meal
well as the Corona bonus were either vouchers provided by the employer
decided or extended. The following (cf. § 3 (1) Z 17 AITA). From 2022 onwards,
overview is intended to provide a brief the tax exemption for vouchers in the
summary of these issues amount of EUR 8,- per day shall also apply
to those meals of the employees that are
Christmas vouchers instead of a prepared or delivered by a restaurant or
Christmas party a delivery service and consumed at the
If the Christmas party in 2020 was cancelled employees' home. Meals prepared by
due to corona, employers had the option supermarkets and delivered by a delivery
of granting their employees vouchers service on the other hand are not covered
of up to EUR 365 instead, with tax relief. by this exemption. Also covered by the
However, this only applied if the benefit exemption is the pick-up of meals from a
from participation in company events, such business (take-away).
as a summer party, could not be used or
could not be used in full due to the Covid Extension of tax-free Corona bonus
pandemic. It was also decided that bonuses and
allowances for employees in connection
Essentially, this tax benefit was only valid for with the Covid crisis will continue to be
the year 2020, but was recently extended exempt from tax and social security
for the year 2021 by resolution of the contributions up to an amount of EUR 3,000
National Council. Due to the fourth Corona this year, provided that this benefit was
wave and the subsequent lockdown, many not already paid before the pandemic
company Christmas parties had to be (cf. § 124b Z 350 lit a AITA). There is no
canceled this year as well, so companies restriction on the tax exemption to certain
once again have the option of converting industries or professions. The payment of
this tax allowance into a voucher campaign the premium can also be made in the form
(cf. § 124b Z 382 Austrian Income Tax Act of vouchers as well as on a one-off basis or
(AITA)). in partial amounts. It should be noted that
this regulation only applies if the payment is
The vouchers can be issued retroactively made by February 2022.
from November 1, 2021 to January 31,
2022. The purpose of the vouchers is to Bernhard Geiger
support the domestic economy, so they bgeiger@deloitte.at
must be redeemable in trade, gastronomy
or other service providers of the economy. Lena Prucher
The pro rata costs of any company event lprucher@deloitte.at
held nevertheless (summer party, company
outing, etc.) must be deducted from the
maximum amount of the voucher for each
participant. In addition, it is still possible
to give employees gifts or vouchers up
to a value of EUR 186,- tax-free as part of
a "company event". As is well known, the
issuance of vouchers itself is be considered
as a company event.
5Tax & Legal News | Breaking News
Amendments in the Government Bill
regarding the Taxation of Cryptocurrencies
in the Eco-Social Tax Reform Bill 2022
The government bill of the ecosocial Deadlines and transitional regulations e-money institution or a credit institution
tax reform law 2022 part I (Ökosoziales The new taxation regime for income with regard to capital yield tax withholding
Steuerreformgesetz 2022) published from cryptocurrencies shall enter into and payment. Foreign investment firms,
on December 15, 2021 includes force on March 1, 2022 and shall apply to payment service providers and e-money
extensions compared to the draft, cryptocurrencies acquired after February institutions are also affected, provided
especially with regard to the definition 28, 2021 (“new assets”). they are domiciled in a country with
of cryptocurrencies and related comprehensive mutual administrative
terminology. Furthermore, the Cryptocurrencies acquired before March assistance on tax matters and a tax
obligation to deduct the capital yield 1, 2021 (“old assets”) and used after representative has been appointed.
tax (KESt) is postponed by one year to February 28, 2022 to generate current
income realized as of January 1, 2024, income from cryptocurrencies under the Conclusion
the group of persons obliged to deduct new taxation regime shall be taxed at the The government bill contains some
KESt is extended and transitional special income tax rate of 27.5 %. This clarifications and amendments regarding
regulations are added. shall apply in case the exception of tax cryptocurrencies. We are looking forward
exemption regarding current income for to the final law, which shall be announced in
Definition of cryptocurrency Staking, Airdrops, Bounties or Hardforks January 2022. Furthermore, it remains to be
The notes to the government bill state that does not apply. In addition, it is clarified that seen in which form and at what exact date
non-fungible tokens (NFTs) which qualify the cryptocurrencies thus acquired shall the regulations regarding taxation of crypto
as non- transferable assets, and asset constitute “new assets” in any case. funds and the associated tax reporting
tokens, which are based on real assets (e.g. (distributions and deemed distributed
securities and real estate), shall not to be Upon request of the taxpayer, the special income) will be implemented. We will keep
subsumed under the fiscal definition of a income tax rate of 27.5% shall be applied you informed on further developments in
cryptocurrency. Stablecoins, whose value for income from cryptocurrencies realized the course of the legislative process.
is intended to depend on the value of an after December 31, 2021 and before March
underlying legal currency or other asset, 1, 2022 instead of the progressive income Elke Teubenbacher
shall qualify as cryptocurrency. tax rate of up to 55%. Losses incurred as eteubenbacher@deloitte.at
a result can be offset against other capital
Staking und Hardfork income subject to the special income tax
It is clarified that only cryptocurrency units rate of 27.5 %.
acquired through classical staking - i.e.,
through the use of units to enable the Capital yield tax withholding
confirmation of a transaction in the course obligations
of the (delegated) proof of stake - shall fall The obligation to withhold capital yield tax
under the tax exemption regarding current shall be mandatory for domestic capital
income from cryptocurrencies. Taxation income that accrues as of January 1, 2024.
shall occur at a later date upon disposal or However, agents obliged to deduct capital
equivalent event (in particular in case of yield tax should be free to opt to withhold
exit tax). Other transactions, even if they voluntarily the tax on capital income and
are referred as staking, shall not generate gains starting already in the calendar years
current income from cryptocurrencies. 2022 and 2023, provided that the special
tax rate of 27.5 % is applicable.
Furthermore, the exemption criteria have
been expanded to include the receipt of There shall also be a new possibility of
cryptocurrencies in the context of a spin-off a voluntary capital yield tax deduction
from the original blockchain, the so-called as of March 1, 2022 for income from
hardfork. Acquisition costs of zero shall be uncertificated derivatives, which may also
assumed for the cryptocurrencies received, relate to cryptocurrencies, also in those
which shall result in a tax liability in the cases in which investment firms make use
event of a subsequent sale. of a licensed payment service provider, an
6Tax & Legal News | Legal News
The most important new Provisions of
the Austrian Act against Wage and Social
Dumping
As of 1 September 2021, the amend • operations for training purposes; Entitlement to travel, accommodation
ment to the Austrian Act against and meal expenses
• posting and leasing of employees with
Wage and Social Dumping (“Lohn- und The new provisions now clarify that
specific income levels (monthly gross
Sozialdumping Bekämpfungsgesetz – posted employees are entitled to travel,
wage in the last two remuneration
LSD-BG”), which had been expected accommodation and meal expenses
periods before and during the posting
for quite some time, entered into incurred during the posting in Austria. The
or leasing, on average at least 120
force. The modifications are intended amount of the reimbursement is based
% of 30 times of the daily maximum
to eliminate existing ambiguities and on the standard compensation amount
valuation basis pursuant to the General
contradictions with the case law of for comparable employees of comparable
Social Security Act [Allgemeines
the European Court of Justice (ECJ) employers in Austria.
Sozialversicherungsgesetz – ASVG;
as well as the EU-Posted Workers
amount in 2021: EUR 6,660, expected
Directive and the corresponding Simplifications of notification
amount in 2022: EUR 6,804])
amending legislation. Moreover, the requirements
changes are also intended to consider • mobile employees; It is now not an infringement of
the experience gained in practice in administrative law to mistakenly use
• postings or leasing on the basis of
connection with the application of the an incorrect form for the notification of
exchange, training, continued education
provisions. The new legal provisions a posting or leasing now (for postings,
or research programs, or as a seconded
are applicable to postings and labor the ZKO3 form has to be used, and for
or leased lecturer at universities without
leasing assignments that began after secondments, the ZKO4 form).
a time limit;
31 August 2021.
• posted employees of a seller or lessor for Framework notifications
The following is an overview of the most the delivery or of the buyer or lessee for (“Rahmenmeldungen”)
significant changes: the collection of goods; Framework notifications can be submitted
for employees who are repeatedly engaged
• posting or leasing for the initial
Service contract and ongoing across borders for the performance of
commissioning or use of delivered goods.
employment relationship service or service procurement contracts
According to the amendment of the LSD- or within a company group. In the past, a
Equal treatment with domestic
BG, a corresponding service contract framework notification was only possible
employees
between the posting company and the for a maximum period of three months.
Employees posted and leased to Austria
service recipient in Austria as well as a valid Since the amendment entered into force,
are now treated the same as Austrian
employment relationship between the framework notifications can be submitted
employees if the actual posting or leasing
posting company and the posted worker for a maximum period of up to six months.
from the EEA or Switzerland exceeds
are now required for cross-border postings.
a period of 12 months (or 18 months
Maintenance of wage records
in exceptional cases). From this time
Extension of the exceptions Simplifications were implemented in
on, the Austrian labor law standards
Furthermore, the exceptions with regard connection with the provision of the
are applicable in their entirety, insofar
to the scope of application of the LSD-BG necessary wage documents in the event
as these are more favorable than the
were extended. The following provides a of a posting or leasing. It is now possible
corresponding standards of the posting
summary of categories of work activities to provide the employment contract, the
country. Exceptions exist with regard to
which are excluded from the scope of employee registration for social insurance,
the regulations of the Corporate Staff and
application of the LSD-BG: as well as other wage documents in
Self-Employment Provision Act and the
German or English. If employees – who are
• employment relationships with entities of Corporate Pension Act , as with regard to
not mobile employees – are not posted
the public law; the formalities and conditions for entering
for more than 48 hours, it is sufficient to
into and the termination of employment
• postings within the framework of a provide the employment contract as well as
contracts.
company group: the list of services that the working time records.
can be performed within the scope of the
exemption has been extended;
7Tax & Legal News | Legal News
Length of availability of wage records Conclusion
In the course of the amendment of the The amendment made some necessary
“LSD-BG”, the powers of the financial changes to make the application of the
police were also extended. The latter can “LSD-BG “easier from a practical point of
now demand the provision of the wage view. Nevertheless, cross-border postings
documents up to one month after the end and leasings to Austria continue to be very
of the posting or leasing. Therefore, it is complex issues with numerous ambiguities
necessary to keep the relevant documents and pitfalls, where employers are
available even after the termination of the recommended to consult legal experts. The
posting or leasing. Deloitte Legal team will be happy to assist
you with any questions you may have.
Aggravation of administrative penalty Stefan Zischka
provisions s.zischka@jankweiler.at
With the entry into force of the
amendment, the so-called "accumulation Friederike Hollmann
principle" was repealed. Accordingly, there f.hollmann@jankweiler.at
is now one single violation of administrative
law regardless of the number of employees
affected by the infringement. At the same
time, however, new penalty ranges without
minimum penalties were implemented.
Accordingly, penalties of up to EUR 400,000
are possible, depending on the type and
severity of the violation of administrative
law. The conditions for imposing a payment
stop, a payment ban and the provision
regarding security payments have also
been amended.
Information requirements for leasing
It is now stipulated that the foreign
employer (lessor) of a worker leased
across borders to Austria has the duty to
inform the local employer (lessee) and the
employee with regard to the applicable
statutory labor law provisions and the
provisions of the collective bargaining
agreement applicable regarding the
remuneration of the employee.
8Tax & Legal News | Legal News
The Austrian Consumer Warranty Act
On 7 July 2021, the Austrian National with the accessories that the consumer transferee against the transferor. The
Council passed the new Austrian can "reasonably expect," and (iv) have the limitation period, on the other hand, is the
Warranty Directive Implementation quantity, quality, durability, functionality, period of time available to the transferee
Act (“Gewährleistungsrichtlinien- compatibility, accessibility, continuity, to assert his warranty claims in court. The
Umsetzungsgesetz”), which, in addition security, and other characteristics that warranty period is two years and begins
to amendments to the warranty are customary for such goods or digital with the transfer of the goods or with the
provisions in the Austrian Civil Code services. Any deviation from this provision provision of the digital service. What is
(“Allgemeine bürgerliche Gesetzbuch”; requires the express and separate consent new is that after the warranty period has
“ABGB”) and the Austrian Consumer of the consumer. expired, an additional limitation period of
Protection Act, primarily introduces a three months is provided for, within which
new Austrian Consumer Warranty Act Updating obligation of the the defect must be asserted (in court if
(“Verbrauchergewährleistungsgesetz entrepreneur necessary).
“; "VGG"). The new VGG will enter into Another new provision in the VGG is
force on 1 January 2022. This article the obligation of the entrepreneur to Conclusion
first deals with the scope of application update goods with digital elements (eg As a result, the VGG improves the rights
of the VGG and then summarizes the navigation devices or smartphones) and of consumers, in particular due to the
most important amendments the Act digital services, which as an exception also extension of the warranty to digital services
foresees. applies to contracts concluded between and the extension of the presumption
entrepreneurs. The entrepreneur must period of the defectiveness of the
Scope of Application provide those updates that are necessary performance object to twelve months. For
The VGG is generally only applicable to to ensure that the goods or digital services entrepreneurs - due to the difference in
contracts between entrepreneurs and continue to comply with the contract. Due the scope of application of the ABGB and
consumers for (i) the purchase of movable to the obligation to provide updates, the VGG - it is now recommended to make a
objects (goods) and for (ii) the provision of entrepreneur may now be subject to a distinction with regard to consumer status
digital services. Also covered by the VGG warranty obligation by reason of a failure and the type of contract.
are contracts for the sale of goods that to provide updates, even if the quality of
are yet to be manufactured, hence also the service object was in conformity with Tabatha Franke
contracts for work and services similar to the contract or free of defects at the time t.franke@jankweiler.at
sales contracts. In addition, contracts for of transfer. The contractor must therefore
the provision of digital services are also provide the necessary updates (during
covered by the VGG if the consideration certain periods).
does not consist of a payment but of the
transfer of personal data. One cannot agree Extension of the presumption period of
to deviating provisions than to those of the defectiveness
VGG if the deviating provisions are to the As provided in the ABGB, the VGG
detriment of consumers. also recognizes the presumption of
defectiveness upon handover of the object
The most important innovations of the of performance if the defect becomes
VGG apparent within a certain period of time
after handover. However, in contrast to the
Definition of deficiency regulations in the ABGB, the presumption
Forthcoming, in addition to the period under the VGG is one year from
contractually agreed characteristics, the handover and thus twice the period of six
entrepreneur is also responsible under months applicable under general warranty
warranty law for ensuring that the goods law.
or the digital service have the objectively
required characteristics. These objectively Distinction between warranty period
required characteristics are – in contrary and limitation period
to the usually required characteristics in A practice-relevant new regulation relates
the ABGB – listed in the VGG: the goods to the time limit regime of the VGG, which
or the digital service must (i) be suitable for the first time distinguishes between
for the purposes for which such goods warranty periods and limitation periods.
or digital services are usually used, (ii) The former refers to the period within
correspond to a sample or a specimen or a which the defect must have occurred in
test version or "preview", (iii) be equipped order to trigger warranty claims by the
9Tax & Legal News | Business Tax
Administrative High Court decides on
Evaluation Principles for Non-Profit Entities
The Administrative High Court has in the absence of services rendered by of the medical equipment). A potential
recently decided on questions of the holding company to its subsidiaries interest of competing market participants
the valuation of shares in non-profit the shares could at least be qualified as in the shares in the company must also
limited liability companies and the arbitrary business assets, so that in this be considered in the valuation. In any
admissibility of partial write-downs case the status as business assets would case, a mere reference to the sum of the
by their shareholders. Moreover, also be achieved. subsidiary's assets at book values (less
the Administrative High Court dealt liabilities) or a reference to the net loss
with some fundamental questions in Participations as a hobby-activity? for the year does not constitute adequate
connection with tax-privileged The Administrative High Court also rejected proof of an impairment of the shares.
(non-profit) legal entities the qualification of the participations as a
(Administrative High Court hobby-activities (“Liebhaberei”) which was Result
10. June 2021, Ro 2019/15/0007). argued by the tax office. In the opinion The statements of the Administrative High
of the Administrative High Court, the Court are generally to be welcomed and
Facts management services carried out by the offer an indication of the question of the
A holding company (owned by a religious holding company and the shareholdings valuation of shares in non-profit limited
order) held 100% of the shares in two must be viewed together. An isolated view liability companies, which has not yet been
non-profit limited liability companies, which of the (profitable) management services conclusively clarified.
were operating hospitals. The holding on the one hand and the (profitless)
company also provided management shareholdings on the other hand is not Christoph Hofer
services to the two companies which permissible. Rather, the overall activity of chhofer@deloitte.at
constantly generated losses. Due to the the holding company must be considered.
loss situation of the companies, the holding
company wanted to partially write-down Proof of impairment?
the investments and offset these write- Finally, the Administrative High Court
downs with taxable income (resulting from commented on the question of the
its function as the parent company of a tax valuation of the shares in a non-profit
group with other for-profit subsidiaries). limited liability company. Preliminary, it
The tax office and later also the Tax must be stated that non-profit limited
Appeals Court did not accept the partial liability companies must not be profit-
write-downs on the participations in the oriented due to the tax requirements
non-profit subsidiaries. for non-profit legal entities on the one
hand and on the other hand they are not
Decision of the Administrative High allowed to make profit distributions to
Court their shareholders. The methods usually
In its decision, the Administrative High used for the valuation of the shares in
Court addressed several fundamental limited liability companies, which focus on
questions: the future cash inflows resulting from the
shares (profit distributions), can therefore
Participations as business assets? not be applied to non-profit limited
The tax office did not accept the write- liability companies. Instead, according to
down, inter alia, with reference to the the Administrative High Court, the so-
lack of the business asset status of the called substance value or reconstruction
investments. The Administrative High Court value can be used. This is the amount
stated that there is in any case a relevant that would have to be spent on (re-)
factual connection between the provision establishing the assets of the subsidiary. In
of services for consideration (management the present case, these were the current
services) and the shareholdings and that replacement costs of the assets of the
the shareholdings must therefore be hospitals operated by the subsidiaries
regarded as necessary business assets (i.e. in particular the current construction
of the holding company. According to the prices for the buildings owned by the
Administrative High Court, however, even companies and the current market prices
10Tax & Legal News | VAT & Customs
Amendments to Intrastat Declarations
as of the Reporting Year 2022
Intrastat declarations via RTIC from EUR 750,000 to EUR 1,200,000 Technical amendments in connection
As of the reporting year 2022, the based on the European Business Statistics to the reporting tool RTIC
previously available reporting applications (EBS). Due to the presumed increase For the purpose of submitting declarations
IDEP/KN8.NET, the transmission via of the assimilation threshold as of the via the RTIC tool, solely files with the
EDIFACT as well as the submission of an reporting year 2022, businesses subject to extensions .csv, .txt or .asc can be
Intrastat declaration via paper are no reporting requirements are encouraged processed in order to import data
longer available. Thus, from the reporting to re-examine their respective reporting records into the Statistics Austria portal.
year 2022 onwards, the reporting tool obligations. Furthermore, merely files with permanent
RTIC (Reporting Tool Intra Collect), which is column allocations of variables can be used
embedded in the Statistics Austria portal, Content amendments starting for data imports from the reporting year
will be the only interface for submitting reporting year 2022 2022 onwards. Additionally, the number of
Intrastat declarations. The decisive factor In order to meet the requirements of the reporting lines per data import transaction
for the change in the reporting modalities European Business Statistics (EBS) as well will be increased from 50,000 to 200,000.
are the foreign trade regulations by the as the EU-wide mandatory exchange of
European Business Statistics (EBS), which microdata, the following amendments in Moreover, it is important for businesses
will enter into force throughout the EU as of the content of Intrastat declarations will to note that an online access to the
the reporting year 2022. take place in Austria at the beginning of the Statistics Austria portal is required to fulfill
reporting year 2022: the Intrastat reporting obligation as of
RTIC test the reporting year 2022. In this context,
The reporting tool RTIC, which was businesses should bear in mind that in case
• The reporting of the statistical procedure
introduced several years ago, can be tested online access has to be applied for first,
and the mode of transport will be omitted
by means of the test application “RTIC-Test” there may be delays of up to two weeks
on both the import and the export side.
in the Intrastat portal of Statistics Austria. before access to the Statistics Austria’s web
The application, which was developed solely • A two-digit code must be entered in portal is granted.
for test purposes, offers the opportunity the Intrastat declaration for the type of
to familiarize with the reporting tool RTIC, transaction. In this context, it is further The expected go live date of the RTIC
which will be mandatory as of the reporting crucial to take the adaption of the reporting tool including the above-
year 2022. Within the scope of the RTIC test respective codes as of the reporting year mentioned EBS-amendments is 3 January
application, no Intrastat declarations can 2022 into consideration. 2022.
be submitted, and it is further not possible
• The recipient UID is mandatory for export
to transfer the prepared declarations into Sabrina Schemitz
declarations.
the actual RTIC reporting tool. However, sschemitz@deloitte.at
within the test application, the preparation • As of the reporting year 2022, the country
of Intrastat declarations under the of origin must be reported not only for
EBS-amendments can already be tested imports but as well for exports.
before the implementation of the below
• The variables invoice amount
mentioned amendments.
(“Rechnungsbetrag”) and statistical value
(“Statistischer Wert”) are no longer to be
Increase of the assimilation threshold
rounded to full euros as of the reporting
In general, businesses are required to
year 2022 as they are to be declared
file Intrastat declarations in case that
specifying two decimal digits.
their shipments of goods to EU Member
States or their receipts of goods from EU • The quantity variables special unit of
Member States exceeded the assimilation measurement (“Besondere Maßeinheit”)
threshold of EUR 750,000 in the previous and net mass (“Eigenmasse”) are to be
year. In case the threshold is exceeded in reported with three decimal digits.
the current calendar year, reports must • The invoice amount as per invoice
be submitted to Statistics Austria as of must be reported for all transactions
the corresponding month in which the of goods starting the reporting year
threshold is exceeded. As of the reporting 2022. However, if no invoice is available,
year 2022, the assimilation threshold for the market price must be stated in the
Intrastat will presumably be increased corresponding Intrastat declaration.
11Tax & Legal News | VAT & Customs
Draft of Eco-Social Tax Reform 2022: National
Emissions Trading System and Electricity Tax
Act
A large part of the announced eco-so- the corresponding number of emission relief. Relief measures can be claimed
cial tax reform 2022 is dedicated to certificates. For the administration of the primarily by agriculture and forestry as well
the pricing of CO2. This is intended to national emission trading system, the as by energy-intensive economic sectors.
contribute to climate protection and Office for National Emission Trading will be
achieve the EU-wide regulations on the established in Austria. It will be integrated in In the transitional phase, the organizational
reduction of greenhouse gas emissions. the Federal Ministry of Finance. requirements for a trading system with
Furthermore, the eco-social tax reform emission certificates at national level or the
also provides minor changes regarding The introduction is divided into a fixed transfer to a European system are to be
tax exemptions in the Electricity Tax price phase (1 July 2022 to 31 December prepared. A national emission allowance
Act. 2025) and a market phase (from 1 January trading registry will be introduced, through
2026). In the fixed-price phase, the emission which the purchase and disposal of
National Emission Trading Act 2022 allowances are not yet freely tradable, but emission allowances will be managed.
An essential part of the eco-social tax are issued at fixed prices. The fixed price
reform is the pricing of energy-specific is EUR 30 in 2022 per ton CO2 equivalent Depending on the design of the EU
greenhouse gases in sectors (buildings, and increases to EUR 55 by 2025. For 1 liter emission trading system and the
transport, etc) that are currently not of gasoline, which has a greenhouse gas effectiveness of national emission trading,
covered by the European emissions trading emission factor of 2.38 kg/liter, 7 cents the market phase, in which emission
system as the building and transport sector. must therefore be paid in 2022. allowances are to be freely traded and
The energy industry, energy-intensive which is to start on 1 January 2026, will
industries and commercial aviation During the introductory phase (1 July 2022 be prepared at the end of the transitional
are already covered by the European to 31 December2023), simplified regulations phase. If the EU emissions trading system
emissions trading system. To achieve the apply to the registration and monitoring of also includes the buildings and transport
climate protection targets and reduce the national emission trading system. All sectors from 2026, the national emissions
greenhouse gas emissions, a national those trading participants who are already trading system will be adapted accordingly
emissions certificate trading system is to be registered as tax debtors of an energy and transferred to the EU-wide system. The
introduced in Austria as of 1 July 2022. tax before 1 July 2022, will be registered further design of the market phase has not
automatically. Separate registration for yet been specified at the present time.
To introduce the national emissions trading the national emission allowance system
system as quickly and unbureaucratically is not required. From the transition phase Conclusion
as possible, the national emissions trading onwards, a monitoring plan must be In the introductory phase, the National
system is linked to the existing system for submitted during registration. This is also Emission Trading Act 2022 and thus the
levying energy taxes. In the initial phase, not yet required during the introductory obligation to purchase and disposal of
energy-related greenhouse gas emissions phase. national emission allowances will affect
resulting from the use of coal, gas and companies that already bring fossil energy
petroleum products are to be linked to Once a year, each trading participant sources into circulation and pay mineral oil
the issuance of emission certificates. If must submit a greenhouse gas emissions tax, natural gas tax or coal tax in Austria.
trading participants bring fossil fuels into report. In this report, the national emission As the first phase of national emission
circulation, the obligation to surrender allowances which are to be disposed trading is scheduled to start on 1 July 2022,
national emission certificates also arises have to be reported and exemptions companies affected by the new law should
with the incurrence of tax liability under and reductions may be claimed. From analyze the new legal requirements and the
the energy taxes. With the purchase of the transitional phase (1 January 2024 to respective consequences for its businesses
emission certificates, the trading participant 31 December 2025), the greenhouse gas at an early stage.
receives the right to place certain emission report must be accompanied by
substances (mineral oils, fuels, natural a verification report from an independent Changes in the Electricity Tax Act
gas and coal) on the market and thus verification body. As a relief measure to The already existing tax benefits for “self-
indirectly cause greenhouse gas emissions. maintain cross-border competitiveness, in produced electricity” will be extended
Depending on the actual emission output, particular the avoidance of carbon leakage, to all renewable energy sources. As of 1
the trading participant has to dispose of affected parties may receive (proportionate) July 2022, no electricity tax will fall due on
12Tax & Legal News | VAT & Customs
self-produced and used electrical energy,
provided it comes from a renewable energy
source. This means that the exemption
limit of 25,000 kWh per year for small
hydropower plants, biogas and wind
energy, for example, will no longer apply.
Furthermore, it is specified that traction
current produced from renewable
energy sources by railroad undertakings
themselves is tax-exempt, provided
that it is used by the producing railroad
undertakings themselves or by other
railroad undertakings for the propulsion
and operation of railroad vehicles.
Barbara Anzinger
baanzinger@deloitte.at
13Tax & Legal News | VAT & Customs
ECJ on Vat Exemption for Fund Management
Services in case of Outsourcing
In two related cases (C-58/20 K and is the concept of "special investment funds" it would have to be examined whether
C-59/20 DBKAG), the European Court defined by the member states as well as the tax work for special investment
of Justice (“ECJ”) recently ruled on the definition of "management". In analogy funds constitutes specific – and precisely
questions submitted by the Austrian to the Directive, the Austrian Value Added not also inherent in any other type of
Tax Appeals Court (“BFG”) concerning Tax Act does not define the management investment – obligations under Austrian
the VAT exemption for outsourced service in more detail. law; the fact that a service is not explicitly
services in connection with the mentioned in Annex II to the UCITS
management of investment funds. The For the final answer to the question whether Directive (Undertakings for Collective
decision of the ECJ on 17 June2021 dealt the outsourced services at hand meet the Investment in Transferable Securities
with the requirements relevant for the requirements of the VAT Directive, the ECJ Directive) would therefore be irrelevant.
application of the VAT exemption for refers to the examination by the national In Case "DBKAG", it would also have to be
the management of special investment courts. However, the tax exemption will examined whether the service is provided
funds. Even if the ECJ did not finally (only) be granted if the services provided by exclusively for the purposes of managing
decide on the specific facts, the Court third parties "are intrinsically connected to special investment funds, and not to
was open to the application of the managing special investment funds" and are other funds; the mere fact that a service
exemption – repeating known criteria "provided exclusively for the purposes of is performed by electronic means does
from previous decisions. managing special investment funds". For this not in itself preclude the application of the
purpose, the ECJ formulates the standard exemption to that service insofar as the
Facts of review in repetition of decisions already service in itself is not of a purely material
In Case C 58/20 "K", management rendered as follows: or technical nature.
companies outsourced to a third party
• Management services provided by
("K") services for the calculation of the Conclusion
third parties (and outsourced by the
taxable income of unitholders from The ECJ emphasizes the need for a narrow
management company) may in principle
the funds. Based on the audited fund interpretation of the tax exemption but is
be tax-exempt.
accounting, K determined the figures open to its application even in the case of
accordingly for various groups of • The prerequisite is that these "viewed outsourcing to third parties. However, the
investors. The management companies broadly, form a distinct whole" fulfill in ECJ leaves the final assessment to the local
were still responsible for carrying out the effect "the specific, essential functions" courts.
standardized declarations to the reporting of the management of special investment
office. funds. The Court focuses on the concepts of
"distinct/autonomous character" and
• "Distinct character" does not require
In Case C 59/20 "DBKAG", the third party "specific/essential character" of the service
the complete outsourcing of the
granted the management company a under outsourcing. A partial outsourcing
qualified service: According to the ECJ
right to use software which was essential or the purely electronic performance of a
in Case "K", the fact that the declaration
to risk management and performance service does not prevent the exemption.
to the reporting office resulting from
measurement in return for the payment of Specific/essential character within the
the calculation of the third party is
a fee. The third-party software processed meaning of the provision requires a close
the responsibility of the management
the data entered by the management connection to the legally binding duties of
company (which outsources the
company's own IT environment. The the management company. In this context,
calculation) is not in itself decisive for the
responsibility for the accuracy of the the ECJ basically refers to Annex II of the
assessment of the outsourced service.
automated calculations of risk and UCITS Directive and thus, on the one hand,
Similarly, in Case "DBKAG", the necessity
performance figures based on this data, to the functions of investment management,
of the usage of the software provided by
which were used by the management which also include risk management and
the third party in conjunction with the
company to fulfill its legal reporting performance measurement. On the other
technical infrastructure (and the resulting
obligations, was borne by the third party. hand, this also concerns the “administrative
database) of the management company is
services” mentioned therein, whereby
not in itself decisive for the assessment of
Legal Assessment the lack of mention of a specific type of
the outsourced service.
The management of special investment administrative service in the cited catalogue
funds defined as such by the member states • "Specific and essential character" is not in itself a reason for exclusion.
is exempt from VAT. The Directive does not requires examining whether the service
restrict the exemption neither regarding the provided by that third party is intrinsically Andreas Götz
person providing the service nor regarding connected to the activity characteristic agoetz@deloitte.at
the recipient of the service. What is essential of a management company: In Case "K",
14Tax & Legal News | Tax Litigation
Cash Register Obligation: Mandatory
Generation of the "Annual Receipt" at Year
End
At the end of 2021, we would like to omitted. Your cash register manufacturer checked manually in advance if there is no
remind you about the obligation to can answer this question for you. automatic check via FinanzOnline.
generate and verify the annual receipt
if your company is subject to the cash A functioning signature creation unit that Apart from the generation of the annual
register obligation. has been properly activated at FinanzOnline receipt, it should also be noted that the
is required for the creation of the annual complete data capture log of the cash
Overview receipt. In case your signature creation unit register must be backed up on an external
For each cash register, the preparation of is not functioning on 31 December, the data carrier every quarter and thus also at
an annual receipt is required at the end annual receipt must be created and verified the end of the year. Each backup must also
of the calendar year. The receipt must after the end of the outage immediately. be kept for at least seven years. The backup
be printed out as an “annual receipt”, must contain the annual receipt, which
checked by using the “BMF Belegcheck”- Step 2: Verification of the annual ensures the immutability of the entire data
App and kept for seven years. Certain document capture protocol by way of signature, as the
cash registers can alternatively create the For the purpose of tamper protection, a last receipt.
annual receipt electronically and transmit mandatory check of the annual receipt
it to FinanzOnline via the cash register web must be performed, which can be Verification of existing cash registers
service. You need the annual receipt, which done either manually using the “BMF In practice, often the registration of
depending on the type of cash register Belegcheck”-App or automatically via the cash register and the signature
has to be checked manually or is checked the cash register web service. If the cash creation device via FinanzOnline has
automatically, for the mandatory check register has a FinanzOnline interface, the not been carried out correctly, and thus
of the tamper protection of your cash check is performed independently by the the documents have not been signed in
registers. cash register. accordance with the law. Under certain
circumstances, this may be due to a lack
The following steps are required to It should be noted that the verification of verification of the start document.
generate and verify the annual receipt, of the annual receipt (whether manual Therefore, we advise you to check again
which in the majority of cases corresponds or automated) must be performed whether the cash register is functioning
to the monthly receipt for December: no later than 15 February 2022. If the properly in accordance with the specific
check is carried out after 15 February provisions and has been activated via
Step 1: Preparation of the annual 2022, this may fulfill a fiscal offence Finanzonline. Otherwise, you may be
receipt. (“Finanzordnungswidrigkeit”) and result in a subject to further fiscal offences.
The annual receipt must be prepared by fine of up to EUR 5,000 per offender.
31 December of the calendar year, even Madeleine Grünsteidl
in the case a deviating fiscal year. Like any Special cases mgruensteidl@deloitte.at
other monthly voucher, the annual receipt is If you operate a business that generates
a zero voucher, which is created by entering cash sales beyond midnight on
the value 0 (quantity "zero (0)", amount of 31 December, you may prepare the
cash payment "zero (0)", as a commercial annual receipt after the last cash sale on
term "annual receipt"). This receipt must 31 December 2021 or immediately before
then be printed and kept for seven years. the start of the following business day if
you still allocate the sales after midnight to
If your cash register creates the annual 31 December 2021 in your accounting.
receipt electronically and sends it to
FinanzOnline for verification via the cash If you run a seasonal business and your
register web service, it is not necessary to last cash sale for this calendar year was,
print out and retain the annual receipt. In for example, already in September, the
this case, it must be ensured that the cash monthly receipt from September (i.e. the
register has an interface to FinanzOnline so zero receipt September) can be used as the
that manual checking and storage can be annual receipt. This receipt can already be
15Tax & Legal News | Tax Litigation Tax Deadlines in January 2022 On 17 January 2022 the following declarations/payments are due: • Advance VAT declaration for November 2021. • Standardized Consumption Tax for November 2021. • Capital Gains Tax for capital gains on debt securities for November 2021. • Tax on energy, coal and natural gas for November 2021. • Advertising Tax for November 2021. • Digital Tax for November 2021. • Wage Tax for December 2021. • Employer-Contribution to the family allowance compensation fund for December 2021. • Surcharge to the Employer-Contribution for December 2021. • Municipal Tax for December 2021. • Social insurance payments for employees for December 2021. • „U-Bahn Steuer“ for Vienna for December 2021. • Withholding Tax defined according to Sec 99 ICTA for December 2021. • Intrastat declaration for December 2021. On 31 January 2022 the following declarations/payments are due: • Recapitulative statement („Zusammenfassende Meldung“) for December 2021. • Stability charge for the first quarter of 2022. On 15 January 2022 the following declarations/payments are due: • Application for turnover loss bonus II for September 2021 Madeleine Grünsteidl mgruensteidl@deloitte.at 16
You can also read
