The CERHA HEMPEL Tax Journal provides an insight and in depth articles on current topics in corporate tax law, international tax law as well as tax controversy. Our team members are dually qualified as attorney-at-law as well as tax advisors and regularly advise clients in M&A transactions, reorganisations and tax structuring. We represent our clients in all aspects of tax controversy including tax audits, tax litigation and fiscal criminal law.
The Start-Up Promotion Act and the Company Law Amendment Act 2023 were published as ministerial drafts at the end of May 2023 and sent out for review. While the first package provides for essential measures under tax law to promote start-ups, the second package is intended to implement measures under company law.
The EU Mobility Directive, RL (EU) 2019/2121, which entered into force in January 2020, provides for a uniform legal framework for cross-border reorganisations. To this end, the directive provides for an amendment of the already existing rules on cross-border mergers as well as additional rules on cross-border conversion (cross-border transfer of the registered office) and on cross-border division. The deadline for transposing the directive into national law was 31.01.2023.
The right to assess a tax is generally subject to a limitation period of five years pursuant to section 207 (1) and (2) of der Federal Fiscal Code (Bundesabgabenordnung - “BAO”). As a rule, the limitation period for the assertion of a tax claim begins at the end of the year (31 December) in which the tax accrued (section 208 BAO).
The right to assess a tax is generally subject to a limitation period of five years pursuant to section 207 (1) and (2) of der Federal Fiscal Code (Bundesabgabenordnung - “BAO”). As a rule, the limitation period for the assertion of a tax claim begins at the end of the year (31 December) in which the tax accrued (section 208 BAO).
The Supreme Administrative Court ("VwGH") has for the first time dealt with the issue of the refund of withholding tax in the case of a cum/ex arrangement (VwGH 28.06.2022, Ro 2022/13/0002).
On 11 May 2022 the European Commission has published a draft directive containing regulations that are intended to counteract the favourable tax treatment of debt capital compared to equity capital.
According to the current case law of the Supreme Administrative Court (VwGH 12. 11. 2021, Ra 2020/16/0158), the application for suspension of enforcement in customs law already has the effect of inhibiting enforcement, even before this application is granted. This means that legal protection in a customs procedure corresponds to that in a tax procedure. The customs administration is currently still ignoring this case law. The article shows that this is questionable from a constitutional point of view and can result in claims for official liability.
On 27 December 2021 the Federal Fiscal Court (BFG, 27.12.2021, RV/7101196/2021) decided that a director who is held liable for taxes of the company has the right to apply for a reopening of the tax assessment proceedings on his own behalf, irrespective of an application by the company.
Increasingly, tax authorities are refusing the deduction of business expenses on the grounds that the disclosed recipient is, according to their opinion, a sham company. In this context, the term "sham company" is interpreted very broadly. The article highlights the risks and possible arguments against the background of recent case law (VwGH 3.12.2021, Ra 2019/13/0074).
On 22 December 2021, the European Commission published a draft directive implementing a global minimum taxation for multinational groups of companies in the European Union (EU), which provides for rules under which groups of companies operating in the EU will be taxed with a global minimum tax rate of 15%.
