ARTICLES and NOTES - Notarius International

Notarius International 3-4/2002 T. Antenreiter, National Report Austria 147
ty is carried out 121 . Under Austrian law the domicile theory
(Sitztheorie) thus applies in principle (and not the incorporation
doctrine – Gründungstheorie).
But nevertheless the question arises as in other EU
states as to the compatibility of the domicile theory with
European law, in particular freedom of establishment
(Niederlassungsfreiheit). That is why the Supreme Court
of Austria has given up the domicile theory regarding
companies incorporated in other EU states 122 .
7.7. Apostille
Austria is a signatory to the Hague Convention on
Abolishing the Requirement of Legalisation for Foreign
Public Documents of 5.10.1961, and for this reason
an Apostille is sufficient for the recognition of notarial
documents from other contracting states and no additional
certification is stipulated.
8. Tax law
8.1. Property transfer tax
Property transfer tax (Grunderwerbssteuer) is levied
on business transactions involving immovable property
(in particular purchase and exchange), but not, however
on acquisition by inheritance or on gifts.
The property transfer tax amounts in principle to
3.5% of the purchase price (the consideration), but in the
area of close family relationships it amounts to only
2% 123 . (The statutory registration fee for the Land Register
amounts to 1%.)
There are two possible ways of computing the tax: either
this is done by way of electronic self-assessment by
notaries (and other places set up for this purpose) and
then paid to the Tax Office in the name of the contracting
parties or the taxable transaction is (as a rule likewise
electronically) notified to the Tax Office, which calculates
the tax and sends a direct order to the parties. The
declaration of self-assessment of the tax or the fiscal
clearance certificate issued by the Tax Office in the second
case is a necessary precondition for registration in
the Land Register.
In the notary’s practice today the overwhelming majority
of all business transactions are already self-assessed
electronically over a separate Internet interface
with the Tax Office (FINANZ online) and the tax is forwarded
to the Tax Office in the name of the parties. In
this situation the notary does not incur any liability for
the accuracy of the contents of the tax computation, but
does have strict liability for the timely paying of all selfassessed
taxes and fees 124 .
8.2. Inheritance tax
Acquisition by inheritance and gratuitous donations inter
vivos are subject to taxation under the Inheritance
Tax Law (Erbschafts- und Schenkungssteuergesetz). The
calculation of the tax is structured so as to be doubly
progressive in accordance in the first place with the
closeness of the familial relationship (tax classes I to V)
and in accordance with the value of the donation 125 . For
example, the tax in tax class I (spouse and children)
amounts in the case of a donation of up to 7.300,– € to
2% and of donations of over 4.380.000,– € to 15 %, and
in tax class V (no relationship) in the case of a donation
of up to 7.300,– € to 14% and of donations of over
4.380.000,– € to 60 %.
In the case of acquisition of real property there is provision
in addition for a property transfer tax equivalent
amounting to 3.5% (2% in the case of close relatives) 126 .
For persons in tax classes I and II there is a tax-free sum
amounting to 2.200,– € for tax classes III and IV of
440,– € and for tax class V of 110,– €.
Acquisitions by inheritance of assets subject to withholding
tax as the final tax (endbesteuerte Vermögen) are
totally exempt from tax; this includes, in particular, credit
balances at banks subject to withholding tax (accounts,
savings deposits, security deposits etc). Up to the end of
2003 gifts inter vivos of cash deposited with an Austrian
bank are also totally exempt from tax in tax classes I
to IV and in tax class V there is a tax free sum of
100,000,– €.
In Austria a tax liability arises if the deceased at the time
of death was an Austrian national or resident (Inländer)
or, in the case of gifts, the transferee is an Austrian national
or resident. Those qualifying as “Inländer” include Austrian
citizens, foreigners domiciled or having their habitual
residence in Austria and legal entities with their registered
offices in Austria 127 . Along with the taxpayer any
person who has safe custody of the deceased’s estate or the
gifted item or any part thereof incurs personal liability for
the payment of the inheritance tax 128 if appropriate security
in respect of the tax was not provided. For this reason it
is usual for Austrian notaries, who as Court Commissioners
frequently hold assets in safe custody for the estate or
the heirs, as a rule only to hand over funds to foreign beneficiaries
after full payment of any tax due.
Austria has concluded are several bilateral treaties (also)
concerning double taxation of the estate, such as
with Liechtenstein 129 , Switzerland 130 , France 131 , Sweden
132 , Hungary 133 , the U.S.A. 134 and with Germany 135 .
These treaties do not regulate what is taxable, but limit
the taxation by either state. Thus, these treaties divide
the possible taxation among the states concerned which
then apply their domestic tax law to regulate the tax applicable
to the specific case.
121 Art. 10 IPRG (Private International Law Statute)
122 See in this regard: Hertel, National Report Germany, Notarius International
, p. 20, 30 (no. 7.5 - Centros decision of the European Court)
123 Art. 7 Property Transfer Tax Law
124 Arts. 10 to 16 Property Transfer Tax Law
125 Arts. 7 and 8 Inheritance Tax Law
126 Art. 8 para. 4 Inheritance Tax Law
127 Art. 6 Inheritance Tax Law
128 Art. 13 para. 4 Inheritance Tax Law
129 BGBl 1956/214
130 BGBl 1975/63
131 BGBl 1994/614
132 BGBl 1963/212
133 BGBl 1976/51
134 BGBl 1983/269
135 BGBl 1955/220