Real estate transfer tax (Austria)

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The real estate transfer tax taxes acquisitions of domestic real estate and rights equivalent to real estate .

It is a levy shared between the federal government (4%) and the municipalities (96%) .

Due to the repeal of parts of the Real Estate Transfer Tax Act by the Constitutional Court , a comprehensive change to the real estate transfer tax was necessary, which was also implemented for the period from June 1, 2014 to December 31, 2015 with a federal act that changed the Real Estate Transfer Tax Act 1987. The 2015 tax reform package, which was presented in March 2015, included a major reform of the land transfer tax law as part of the counter-financing, which was also implemented with the 2015/2016 tax reform law. As of January 1, 2016, there were mainly adjustments to the assessment basis for unpaid acquisitions, the introduction of a clear regulation for share associations and some other accompanying measures.

Jurisdiction

The tax office for fees, transfer taxes and gambling in Vienna is materially responsible for collecting real estate transfer tax.

Tax object

The tax subject for real estate transfer tax is the acquisition process on domestic property. It is not the property itself that is taxed, only the acquisition process. Legal transactions with regard to domestic properties are subject to tax. The acquisition itself is divided into two processes:

  1. the binding transaction that establishes the right to transfer and
  2. the fulfillment transaction , with which the ownership of the property is transferred.

Under civil law, the transfer of ownership of a property usually takes place with the entry in the land register (exceptions, e.g. acquisition in a foreclosure sale , possession ). The real estate transfer tax is already subject to the obligation transaction - this is, for example, the legally valid purchase contract for the property or the condominium - and not just the subsequent fulfillment transaction.

The Real Estate Transfer Tax Act is linked to the concept of real estate in civil law . Properties are delimited parts of the earth's surface with subsurface and surface including the components, including buildings and their components and accessories. Basic shares (ideal shares) count as a piece of land. Several plots of land that form an economic unit in terms of valuation law are considered to be one plot of land if they are the subject of an acquisition process. However, this also means that if several economic units within the meaning of the Valuation Act (§ 2 BewG) are transferred or sold, several acquisitions take place. The same applies if several people appear on one side of the contract. Because if a legal transaction relates to a part of an economic unit within the meaning of § 2 BewG, this part of the economic unit is considered a property. This is particularly important for the application of the exemption limit according to Section 3 Paragraph 1 Item 1 GrEStG 1987 (minor cases) and the tax exemption pursuant to Section 3 Paragraph 1 Item 2 and Item 2a GrEStG 1987 (company transfer). If, for example, a piece of land (an economic unit) is transferred from the parents (2 transferring parties) to the son (1 transferring party), there are 2 acquisitions. If two pieces of land (two economic units) are sold by 3 co-owners to 2 spouses, there are a total of 12 acquisitions.

Exemptions § 3 GrEStG

Section 3 (1) The following are excluded from taxation:

Z 1: the acquisition of a piece of property if the relevant value for calculating the tax does not exceed EUR 1100,

Item 2: [until July 31, 2008] the acquisition of real estate due to death and the donation of real estate among the living within the meaning of the Inheritance and Gift Tax Act 1955, Federal Law Gazette No. 141, as amended. Gifts subject to a condition as well as legal transactions between living persons, some of which are paid and partly free of charge, are only exempt from taxation to the extent that the value of the property exceeds the value of the condition or the consideration,
note :
Z 2 [from August 1, 2008 to December 31, 2015] was changed with the Gift Registration Act 2008 and the exemption for business transfers (cf. § 15a öErbStG) was added. This means that real estate transfers will in any case be subject to real estate transfer tax after the Austrian Employment Tax Act has expired at the end of July 31, 2008. This question was initially controversial in the Austrian specialist literature. From August 1, 2008, transactions subject to real estate transfer tax, which are exempted from real estate transfer tax in the course of a company transfer (at least 25% of a company or part of a company or at least 25% of a co-entrepreneurship) up to an exemption of 365,000 euros, if the tax after Section 4 (2) 1 or 4 GrEStG as amended by SchenkMG is to be calculated, the transferor has reached the age of 55 or is unable to work, the transferee is a natural person and the transferred assets are intended to generate business income (§ 2 para. 3 no 1–3 EStG).

Z 3: the free acquisition of property by corporations that serve the promotion of charitable, charitable or church purposes (§§ 34 to 47 of the Federal Tax Code).,

Z 4: the purchase of a property in the way of a merging process in the sense of the I. main piece, I. portion, and by way of a land consolidation process in the sense of the II main piece of the industrial constitutional fundamental law in 1951, Federal Law Gazette No. 103, in its current version... ,

Z 5: in the case of official measures to improve the design of building land, the acquisition of a piece of land in accordance with the regulations applicable to the better design of building land ,

Item 6: the acquisition of real estate by a foreign state for the purposes of its foreign representative authorities, provided that reciprocity is guaranteed.

Item 7: free gifts between spouses for the purpose of equal acquisition or for the establishment of a marital home that serves the urgent need for housing of the spouses; 150 m² of the living space of the dwelling is exempt (tax exemption), only the portion beyond that is taxed. The ownership structure may not change within 5 years of moving into the apartment. The apartment must be occupied within 3 months of purchase or completion. If the apartment is only being built, it must be completed within 8 years.

Z 7a: Acquisition of a place of residence by spouse if he inherits from spouse. As with Z 7, 150 m² of usable living space are exempt (tax exemption). The prerequisite is that the place of residence served as the main residence of the inheriting spouse.

Z 8: the acquisition of a property as a result of an official intervention (expropriation) or due to a legal transaction to avoid such a demonstrably imminent interference,

Item 9: Contributions from public corporations

(2) If a property that belongs to several co-owners is divided by these according to the area, the tax is not levied as long as the value of the partial property that the individual purchaser receives corresponds to the fraction with which he is on the entire property to be distributed is involved.

Assessment basis

The real estate transfer tax is generally determined from the value of the consideration . In certain cases, the Land Transfer Tax Act provides for a special assessment basis, especially if the acquisition is free of charge or if certain groups of people are to be given preference for steering purposes. The application of the substitute assessment base depends on the time of purchase.

Legal situation since January 1, 2016

Since January 1, 2016, a property value determined specifically for the property transfer tax must be used for free acquisitions of non-agricultural and forestry property .

This was introduced as a minimum and substitute assessment basis instead of 3 times the standard value, among other things, for all acquisitions in the family as well as for acquisitions due to death. Since gifts and inheritances will become significantly more expensive afterwards, some speak of a reintroduction of the inheritance tax that has not been levied in Austria since 2008 .

The family association includes the spouse, the registered partner, the partner, if the partner has or had a common main residence, a parent, the children, grandchildren, stepchildren, children of choice and children-in-law according to Section 26a of the Court Fees Act (GGG) also includes siblings, nieces and nephews of the carrier.

The property value is always used as a basis for assessment within the family association, regardless of whether payments are made, rights of residence are granted or debts are assumed.

In the case of agricultural and forestry land and purchases against payment, either the unit value or the common value of a piece of land is to be used as the minimum and substitute assessment basis.

Legal position from June 1, 2014 to December 31, 2015

Three times the standard value is used as the minimum and substitute assessment basis for land belonging to the real estate (all properties that are not agricultural and forestry land according to valuation regulations). In the case of agricultural and forestry land, the unit value is to be used as a minimum and substitute assessment basis.

For spouses it was possible to divide the common residence tax-free by donation if the usable area did not exceed 150 m 2 . In addition, there was still an allowance of 365,000 euros for property transfers in connection with company transfers . In addition, transfers of assets via foundations were dealt with separately ( Foundation Income Tax Act 2008) .

Legal situation until June 1, 2014

It is only calculated from the value of the property in special cases. The consideration includes any assessable performance that the purchaser (or a third party for him) has to make in order to maintain the property. It can also consist of toleration or omission. What is decisive is not what the contracting parties call the transfer price, but what, according to the content of the contract, the transferee has to provide as the value of the consideration at the relevant point in time of the acquisition process. If, on the other hand, the purchaser's performance is in a direct, actual and economic or "internal" connection with the acquisition of the property, then it is to be regarded as consideration within the meaning of the law (VwGH May 10, 1984, Zl. 82/16/0121).

The tax is based on the value of the property (according to § 6 GrEStG, this is 3 times the standard value ),

  1. if a consideration is not available or cannot be determined or the consideration is less than the value of the property (§ 6 GrEStG)
  2. in the case of agricultural and forestry transfer contracts between close relatives

The prerequisites for benefiting from the farm handover contracts are, in accordance with Section 4 (2) (2) GrEStG:

  1. Only the handover of agricultural and forestry land is favored (not other real estate). Whether the property to be transferred is an agricultural or forestry property can be found in the standard valuation notice or can be inquired at the responsible tax office ( situation tax office ).
  2. The transfer takes place to a beneficiary ( spouse , parent , child , grandchild , stepchild , child of choice (adopted child ), child -in-law ).
  3. The agriculture and / or forestry will continue to be managed after the handover, even if not by the transferee himself.
  4. After all, the handover must serve to secure the livelihood of the handover (transferring rights ).

According to the case law of the VwGH, any service serves to secure a livelihood. In other words, in order to obtain preferential treatment, something in return must be agreed. Occasionally, if the consideration does not exceed (three times) the unit value, the tax office will impose gift tax on the excess three times the unit value.
As the VwGH explains, there is no donation in the case of peasant handover contracts if the consideration is customary in the area and there is no blatant disproportion between performance and consideration. Where - after the ideas of the contractors are not paid by tax values, but of civil values - assessing whether such a glaring mismatch exists, based on the market value shall be taken of performance and reward.
If, conversely, there is a blatant disproportion or if the consideration is not customary in the location, then - if the other prerequisites (will to donate , intention to enrich , accepting enrichment) are present - gift tax for part of the transfer can be prescribed .

The Constitutional Court has repealed Section 1, Paragraph 1, Item 1 and 2 of the Austrian Employment Tax Act and granted a repair period up to and including July 31, 2008. The Austrian federal government soon indicated that it would allow this deadline to pass unused. In addition to the expiry of inheritance and gift tax obligations in Austria, the BReg has announced accompanying measures. There is now a gift registration act. This law also contains some changes to the land transfer tax law. Above all, the benefits provided for in the Austrian Employment Tax Act for inheritance and donations of land have been incorporated into the Land Transfer Tax Act. This means that unpaid property acquisitions are not taxed higher than they would be if the ErbStG continued to apply. However, the implementation of the privileges taken over by the Gift Registration Act into the GrEStG has still caused some difficulties.

Especially the tax deduction of 110 euros according to § 7 GrEStG, if agricultural and forestry land is transferred between the same persons within ten years, appears to be very insignificant.

Much more important would be a clear statement as to when, in the case of peasant (or other) transfer contracts, the consideration and when the (3-fold) unit value is to be applied. The BMF's decree of February 18, 2009, BMF-010206/0040-VI / 5/2009, does not provide any information on this either. The legal systematic interpretation offers a way out. Accordingly, because the law regulates the exemptions in Section 3 before the type of calculation in Section 4, the exemption under Section 3 (1) (2) GrEStG - if the prerequisites apply - would be preferred for the transfer of agricultural and forestry land the preferential calculation according to § 4 Abs. 2 Z 2 GrEStG. However, this could possibly be countered by the objection that Section 4 (2) (2) GrEStG as a lex specialis deserves priority. The decision on this will probably only have to be clarified in legal proceedings.

The actual problem that led to the repeal of Section 1 (1) 1 and 2 ErbStG by the Constitutional Court was simply postponed with the Donation Registration Act. The reason for the repeal was that no new main assessment of real estate had been carried out since 1973 and that the values ​​applied over 30 years ago are completely unsuitable for the valuation of real estate.

The problem is quite comparable with the situation in Germany. It was only a matter of time before someone went to the VfGH. After the discussion in the specialist literature, further complaints are to be expected before the VfGH. However, the Constitutional Court rejected a complaint against the property tax , which was also justified by the fact that the assessment criteria established in 1973 were insufficient.

tax rate

Since January 1, 2016, a tiered tariff of between 0.5 and 3.5% of the property's value has been in effect for free acquisitions.

The tax remains on the purchase of real estate for a fee

  1. generally 3.5%,
  2. in the case of acquisition by beneficiaries (by the spouse , a parent , a child , a grandchild , a stepchild , an adopted child ), a child -in-law or by a spouse of the other spouse in the case of splitting of marital property and marital savings on the occasion of the divorce , cancellation or annulment of the marriage ) 2%.

When purchasing agricultural and forestry land, if the tax was to be calculated in accordance with Section 4 (2) (1) or (4), this was reduced by a maximum of 110 euros. This reduction was available once within ten years if several such acquisitions of agricultural and forestry land were made between the same persons.

Incurrence of the tax liability

The tax liability arises as soon as the taxable acquisition process has been carried out. The acquisition process is realized with the conclusion of the taxable legal transaction , that is the point in time at which the contractual partners have agreed on the object of purchase and the purchase price. This point in time is decisive for the valuation, the use of the tax rate , the start of the statute of limitations , the calculation of the deadlines according to § 17 GrEStG. If the effectiveness of the acquisition process is dependent on the occurrence of a condition precedent (e.g. the effectiveness of the legal transaction is made dependent on the marriage of the transferee) or on the approval of an authority (e.g. guardianship, negotiation, real estate authority approval ) , the tax liability arises only with the occurrence of the condition or with the approval. The agreement of a subsequent condition does not prevent the tax liability from arising.

Tax debtor

Is liable for tax

  • in the case of acquisition by force of law, the previous owner and the purchaser
  • in the event of expropriation and knockdown in foreclosure proceedings, as well as in the case of acquisition due to death of the buyer
  • in the case of the merger of all shares in a company, the person in whose hands the shares are merged
  • for all other acquisition processes, the persons involved in the acquisition process.

There is a joint and several debt relationship between the seller and the purchaser if both are tax debtors. There is no joint liability between several sellers or between several buyers. It is at the discretion of the tax authorities which of the joint and several debtors they use for performance.

Notification requirement

If there is no self-calculation, taxable acquisitions must be reported to the tax office by the 15th of the second month following the calendar month in which the tax liability arose with the tax declaration Gre1.
The notification must also be made if the acquisition process depends on approval or the occurrence of a condition or is exempt from taxation. A tax declaration must also be submitted for verbally concluded contracts. If a document was drawn up about the acquisition process ( contract , resolution, etc.), a copy of it must be attached to the tax declaration. In any case, a tax declaration must be submitted if

  • the consideration is subsequently increased,
  • the purchaser retrospectively grants a service to a third party so that the latter waives the purchase of the property,
  • a third party subsequently grants the seller a service for the seller to leave the property to the purchaser.

Self-calculation of real estate transfer tax

Only lawyers and notaries are authorized to self-calculate the property transfer tax within the deadline for submitting the tax declaration.
The following are excluded from the authorization to perform self-calculation:

Until July 31, 2008

  • Acquisitions due to death that are exempt from tax in accordance with Section 3 (1) 2 GrEStG,
  • the tax-exempt acquisitions in accordance with § 3 para. 1 no. 3 GrEStG for sharing the estate between co-heirs and
  • self-calculation in the application cases of § 17 GrEStG.

As of August 1, 2008

  • self-calculation in the application cases of § 17 GrEStG.

Failure to assess, refund, or change the tax

§ 17. (1) The tax is not set on application,
1. if the acquisition process is reversed within three years of the occurrence of the tax liability by agreement, by exercising a reserved right of withdrawal or a right of repurchase,
2. if the acquisition process is due a legal claim is revoked because the contractual provisions are not fulfilled,
3. if the legal transaction that was supposed to establish the right to transfer is invalid and the economic result of the invalid legal transaction is eliminated.
4. the donated property must be surrendered or the property acquired due to death must be surrendered and represents an acquisition due to death for the (new) purchaser.
(2) If a legal transaction is required between the seller at the time and the buyer at the time, which itself constitutes an acquisition transaction according to Section 1, the provisions of Paragraph 1 Z 1, 2 and 4 apply accordingly.
(3) If the consideration for the property is reduced, the tax will be set accordingly upon application of the reduction,
1. if the reduction takes place within three years of the tax liability arisen,
2. if the reduction ( reduction ) on the basis of § Section 932 and 933 of the General Civil Code ( ABGB ) is implemented.
(4) If in the cases of par. 1 to 3 the control is already fixed, which is at the request of setting changed accordingly. In the case of self-calculation, the tax is to be set accordingly in the cases of Paragraphs 1 to 3 or a decision is to be issued according to which the tax is not set.
(5) Applications according to Paragraphs 1 to 4 must be submitted by the end of the fifth calendar year following the year in which the event giving rise to the claim to non-assessment or amendment of the tax occurred. The period does not end, however, before the end of one year after the stipulation takes effect.

Due date

In the case of an acquisition process that is reported to the tax office, the real estate transfer tax is set with a notice . The due date of the tax occurs in accordance with § 210 BAO one a month after service of the notice. The tax clearance certificate (Section 160 (1) BAO) must be handed over to the tax debtor if

  • the fee has been paid in full,
  • Security for the tax debt has been provided
  • Exemption from taxes is given (Section 160 (4) BAO).

The clearance certificate is not a decision. It is required for entry in the land register .
Party representatives who carry out a self-calculation must pay the self-calculated real estate transfer tax and the registration fee by the 15th of the second month following the calendar month in which the self-calculation takes place.

See also

Individual evidence

  1. ↑ Federal Law Gazette I No. 116/2012
  2. ↑ Federal Law Gazette I No. 36/2014
  3. ↑ Federal Law Gazette I No. 118/2015
  4. ↑ Questions and answers on the GrESt new website of the Federal Ministry of Finance , accessed on March 1, 2017
  5. ↑ Vienna Tax Office ( Memento of the original from March 19, 2008 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / dienststellen.bmf.gv.at
  6. ↑ Clemens Gärner: Transfer of property within the family will be significantly more expensive from 2016. Retrieved March 2, 2017.
  7. ↑ öBMF: Information on the expiry of inheritance and gift tax, [1]
  8. ^ RIS - Administrative Court - list of results
  9. ↑ Decree of the Ministry of Finance of 18 February 2009, BMF-010206/0040-VI / 5/2009
  10. ↑ Land Transfer Tax Act
  11. ↑ PDF at formulare.bmf.gv.at ( Memento from December 30, 2009 in the Internet Archive )