Austria: tax law on companies

Under the Austrian tax law on the transformation of companies it is possible to backdate the transformation aimed at the change of the legal form of a company for tax purposes provided the transformation is reported respectively to the competent court of the commercial register and to the tax office within a period of nine months after the reference date of the transformation.

Previously the Tax Administration and experts on company transformations agreed on the fact that because of the retroactive effect in fiscal terms, a private company could be transferred to a private limited liability company which, in legal terms, was not yet in existence at the reference date of the transformation. The Tax Administration has explicitly confirmed this possibility in its directives issued regarding the Law on the transformation of companies.

Following the filing of several appeals the Independent Fiscal Senate has passed a judgment contradicting the up to this moment unchallenged interpretation of the law. The Fiscal Senate stated that the transfer of a company to a company not yet existing at the reference date of the transformation does not fall within the scope of the tax law on the transformation of companies and therefore cannot be made under the principal of fiscal neutrality.

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