Gift Registration Act

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The Gift Registration Act is a substitute measure that was deemed necessary and introduced in Austria on the occasion of the abolition of inheritance and gift tax on July 31, 2008.

Legal basis

In Austria, inheritance and gift tax has not been levied since August 1, 2008. Among other things, this is a consequence of the ruling by the Austrian Constitutional Court of March 7, 2007, in which a “repair” of the inheritance and gift tax law was prescribed for July 31, 2008, which the legislature did not undertake. With the elimination of inheritance and gift tax, tax-free asset and corporate succession is possible in Austria. The previous legal basis, the Inheritance and Gift Tax Act 1955 (ErbStG) remains in the legal status of the republic. However, the tax is no longer collected and many reporting and declaration obligations are no longer applicable. A relevant double taxation agreement (DBA inheritance tax) with Germany has been terminated.

Need for regulation

Legal adjustments were considered necessary, as the failure to collect taxes also meant that the shifting of assets could no longer be recognized by state organs, which led to fears of circumvention (e.g. reciprocal donations instead of purchases , money laundering , etc.) Previously existing regulations on donations to foundations no longer apply.

The free transfer of assets to a foundation is in Austria according to § 2 para. 2 no. 1 ErbStG an acquisition due to death and according to § 3 Abs. 1 Zif. 7 ErbStG a donation.

Notification requirement

From August 1, 2008, donations are subject to notification. The “obligation to notify” was originally referred to as “obligation to notify” in the drafts of the law and was renamed “obligation to notify” in the course of the legislative process, while maintaining uniform terminology. However, the designation of the “Gift Registration Act” has not been changed. Not notifiable are donations from Austria-off in properties , due to the real estate transfer tax (1987 land transfer tax law) of the tax authorities have already reported. In principle, the notification should be made electronically in order to keep the administrative effort behind and also to make this data available for risk analysis (electronic data comparison ). The notification must be made to the tax office within three months of purchase.

Obliged group of people

If the notification is made by one of the obliged persons, the other persons involved are released from the notification obligation. All parties involved (donor, donor, but also a possibly involved lawyer and notary ) are obligated to the undivided hand if assets (except real estate located in Austria ) are given away and there are no exemptions.

Criticism of the notification requirement

The obligation to notify under Austrian tax law is independent of any tax liability and also applies to people who only have their second residence in Austria .

This notification requirement has come under considerable criticism.

  • The constitutional service of the Austrian Federal Chancellery regards the obligation to notify as difficult to reconcile with the Data Protection Act .
  • It is regarded as a disproportionate and non-equitable intervention and contradicts the previous system.
  • The obligation to notify is also hardly suitable for avoiding circumvention transactions, tax evasion, etc. The Austrian Chamber of Notaries stated this very clearly in its opinion on the assessment of the law: “ Even through a donation notification obligation, income tax avoidance transactions are not easier to" find "in the cases; Even the legislature cannot seriously assume that someone who engages in circumvention transactions will comply with the obligation to notify a gift ”.
  • The obligation to notify is pure information for the financial administration. The acceptance of the notification does not mean confirmation of the content or positive sanctions for the notification or donation made. Offenders (all persons obliged to report are liable to prosecution) will be prosecuted by significant changes and tightening in the Financial Criminal Law. The willful failure to report donations is punishable under the Financial Criminal Act and threatened with up to 10% of the common value of the donation. If there is tax evasion under the pretense of a gift, a fine of up to three times the reduced amount and up to 7 years imprisonment is threatened. The Austrian Bar Association has stated on this provision: " On the one hand, the penalty for failure to report is grossly excessive with 10% of the common value of the assets transferred through the non-reported transactions: It should be borne in mind that the notification is intended for transactions, who are not subject to tax at all, the failure to report therefore has no negative effects on tax revenue: A fine of up to 10% of the common value for a financial offense , which conceptually cannot lead to tax evasion, is after The opinion of the Austrian legal profession cannot be objectively justified. "

Substitute measures for foundations

As a replacement for the repealed provisions of the Inheritance and Gift Tax Act, a “new” input and donation taxation was introduced with regard to donations to foundations and foundation-like assets ( Foundation Income Tax Act of March 30, 2008). The previous tax rates from the Inheritance and Gift Tax Act are partially retained (for foundations and similar estates) and in certain cases a “ sanction tax” is levied.

literature

  • Christoph Kerres, Florian Proell, “ The new legal regulations on foundation entry tax in Austria ” ecolex 2008, 567 ff .; see also Kerres / Pröll in ecolex under [1] (PDF; 197 kB)
  • Austrian Chamber of Notaries, “ Statement of April 15, 2008 ”, GZ: 181/08; smp.
  • Austrian Bar Association, " Statement on the Foundation Income Tax Act" (Statement of April 10, 2008, Zl. 13/1 08/50, GZ 010000/0002-VI / 1/2008).
  • Florian Proell " European legal aspects of the sanction taxation of the Foundation Incoming Tax Act 2008 ", taxlex 2008, 239 ff.
  • Anton Schäfer , " What does" comprehensive "mean in the Foundation Income Tax Act? ", Liechtensteinische Juristerneitung , 1/2009, 1 ff.

Sources and References

  1. ↑ The Austrian Constitutional Court ruled on March 7, 2007, G 54/06 et al., The Z 1 in § 1 Para. 1 Inheritance and Gift Tax Act and with the ruling of June 15, 2007, G 23/07 et al., The Z 2 in Section 1 (1) of the Inheritance and Gift Tax Act repealed with effect from July 31, 2008. According to the Constitutional Court, the regulation in the Inheritance and Gift Tax Act, which provides for three times the standard value as the assessment basis for the calculation of inheritance and gift tax, is unconstitutional because the lump-sum multiplication of historical standard values ​​does not adequately reflect the development in value of real estate and contradicts the principle of equality .
  2. ↑ " By abolishing inheritance and gift tax, Austria can improve its attractiveness as a location for SMEs , which potentially promotes economic growth and employment " (quote from: Report of the Finance Committee, 549 and 612 of Beilagen XXIII. GP - Committee report NR - Reporting, p . 2, “Economic Impact”).
  3. ↑ ErbStG 1955, ÖBGBl 141/1955.
  4. ↑ Section 34 (1) no.13 ErbStG
  5. ^ From October 4, 1954, ÖBGBl 220/1955 or dBGBl. 1954 II p. 755, was terminated by Germany on January 1, 2008 with a transition period to July 31, 2008. The general double taxation agreement with Austria of August 24, 2000 (ÖBGBl. III No. 182/2002) between the Federal Republic of Germany and the Republic of Austria to avoid double taxation in the area of ​​taxes on income and assets remains unaffected by the termination.
  6. ↑ The donation within the meaning of the ErbStG (§ 3), and derived from the Donation Registration Act 2008, is more broadly defined than the term "donation" in civil law (§ 938 ö ABGB ). The donation according to civil law comes about through the agreement of the parties' declaration of intent regarding the transfer of ownership free of charge. In terms of the ErbStG and thus the Gift Notification Act 2008, the will of the gift giver to enrich the recipient is decisive.
  7. ↑ See report of the Finance Committee, RV 549 and 612 of Beilagen XXIII. GP committee report NR reporting.
  8. ↑ See Section 121, Paragraph 4 of the Federal Tax Code (BAO); See Foundation Incoming Tax Act (Gift Registration Act 2008), ÖBGBl I 85/2008. Comes into force on June 27, 2008.
  9. ↑ § 121a Para. 1 Z 1 and Z 2 BAO: Cash , capital claims, shares in corporations , participations as a silent partner, co-entrepreneurial shares , (partial) businesses, movable tangible assets , intangible assets if the donor or the purchaser of the assets denies Domicile or habitual abode or its seat or place of management in Austria.
  10. ↑ Exempt are e.g. B. According to § 121a Paragraph 2 of the Federal Tax Code (BAO):
    • Acquisitions between relatives up to EUR 50,000 / year;
    • Acquisitions between third parties up to EUR 15,000 / 5 years;
    • Donations that fall under the Foundation Income Tax Act - see below;
    • Usual occasional gifts up to EUR 1,000 (approx. CHF 1,600),
    • Household items including linen or clothing.
    Relatives to whom this exemption applies are (§ 25 BAO): great-grandparents , grandparents , parents , spouses , children , grandchildren , great-grandchildren , uncles , aunts , nephews , nieces , cousins , cousins, by -laws (     parents-in-law and children -in -law), partners ( also same-sex) and children of the partner as well as divorced spouses. Not notifiable are e.g. As profits from sweepstakes and other (legal) raffles , donations inter vivos to churches , to domestic legal entities , the non-profit , charitable track or religious purposes, contributions of public bodies and donations in the event of a disaster to victims. Furthermore, the exemptions of the Inheritance and Gift Tax Act 1955 continue to apply.
  11. ↑ Prof. Josef Schuch (Finance Law, Vienna University of Economics and Business) said in the 2008/18/03 Standard on the Gift Registration Act that he “ has hardly seen a law in recent years that has so legally and politically failed.” Here, “in view of the panic in Germany via Liechtenstein, an uncontrolled and erratic quick shot was taken ”. Note : § 2 Paragraph 1 lit. a) and c) StiftEG is also referred to as "Lex Liechtenstein", as this provision can be directed primarily against Liechtenstein foundations and estates ( trusts ). Christoph Kerres and Florian Proell, “ The new legal regulations on foundation entry tax in Austria ” in ecolex 2008, 569, “ clearly ” assume that this provision of § 2 Paragraph 1 lit. c) StiftEG primarily directed against Liechtenstein foundations, but without going into more detail about the administrative assistance and enforcement agreements that the other EEA members (in particular Norway ) or Switzerland ( EFTA ) have concluded and whether these are equivalent under the StiftEG. Cf. also Michael Petritz in “ The taxation of the trust according to the SchenkMG ”, taxlex, 2008, 277. Anton Schäfer, “ What does“ comprehensive ”in the Foundation Income Tax Act mean ? ", Liechtensteinische Juristerneitung, 1/2009, Pkt. A.4.2 speaks this option (Lex Liechtenstein).
  12. ↑ Federal Chancellery Constitutional Service, GZ ● BKA-602.548 / 0001-V / 7/2008, opinion on Article 4 Gift Registration Act 2008 (amendment to Article 121a of the Federal Fiscal Code in conjunction with Article 1 (2) DSG 2000 and with regard to Article 6 DSG 2000). See also circular on the legal design of encroachments on the fundamental right to data protection (G ● 2 BKA-810.016 / 0001-V / 3/2007), item 6.
  13. ↑ For example, the failure to report is made a punishable offense under the Financial Criminal Law, although there is no longer any tax liability for the gift itself.
  14. ↑ Opinion of April 15, 2008, GZ: 181/08; smp.
  15. ↑ Section 49a, Paragraph 1 of the Financial Criminal Law (FinStrG) - genuine omission offense . An absolute statute of limitations is given, irrespective of the beginning of the statute of limitations for prosecution , at least after 10 years from the end of the notification period (Section 31 (5) FinStrG, Section 121 (4) BAO).
  16. ^ Opinion of April 10, 2008, Zl. 13/1 08/50, GZ 010000/0002-VI / 1/2008.