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).
However, if the tax authority undertakes “outwardly recognisable official acts” within the limitation period to assert the tax claim or to determine the person liable to tax, the limitation period shall be extended by one year. The limitation period shall be extended by a further year in each case if such official acts are undertaken in the last year of the extended limitation period. This may extend the limitation period up to the absolute limitation of ten years (section 209(3) BAO).
Therefore, the interpretation of the term "outwardly recognisable official acts to assert the tax claim" is decisive for the limitation period. The BFG recently dealt with this issue (BFG 18 March 2022, RV/7105826/2017).
In 2010, several persons acquired real estate. At the beginning of 2011, the real estate transfer tax was self-assessed. In mid-December 2015, the competent tax office prepared an extract from the land register and printed out the purchase contracts from the collection of deeds in the land register. On the same day, the tax office sent a general request to the project company, stating a tax account number, asking for notification of the buyers and the status of the (final) settlements. At the end of 2016, the tax office assessed the real estate transfer tax differently from the self-assessment. The taxpayer filed an appeal.
Decision of the BFG
According to the BFG, the right to assess the real estate transfer tax was already time-barred at the end of 2015. Neither the land register query or the printout of the purchase contracts nor the inquiry to the taxpayer were "outwardly recognisable official acts to assert the tax claim".
The Supreme Administrative Court (Verwaltungsgerichtshof – “VwGH”) had already taken the view that the download of commercial register extracts by the tax authority cannot extend the limitation period (cf. VwGH 7 Sept 2006, 2006/16/0041). According to the established case law of the Administrative Court, the effect of an extension requires the assertion of a specific tax claim (cf. Administrative Court 28 March 2014, 2010/16/0176).
In the opinion of the BFG, the request to the project company at the end of 2015 did not constitute an official act extending the limitation period either, because the request had no relation to the assertion of a specific tax claim. In the specific case, it was not even recognisable that the request concerned real estate transfer tax; it could also have concerned VAT or income tax.
It is not sufficient that an act, viewed in retrospect, proves to be "also" suitable for the tax claim ultimately asserted by the authority with the notice (BFG 18 March 2022, RV/7105826/2017 with reference to VwGH 7 September 2006, 2006/16/0041, and VwGH 17 May 2001, 2000/16/0602). It must be clear in advance which tax claim is being asserted so that official acts can be reviewed and legal peace can be achieved with the expiry of the statute of limitations (cf. VwGH 4 Sept 2008, 2007/17/0222).
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