English Summary 1/2026

Largely unnoticed, the FoPV was amended regarding the principle of authoritative accounting (“Maßgeblichkeitsgebot”). In addition, the amendment for the first time introduces options for including “direct investments” in the assessment base of the research premium, adds in Annex I a definition of excluded expenses for “market‑oriented R&D,” and expands in Annex III the required information on R&D clusters to include the number of aggregated r&d-projects. As a rule, these changes apply only to premium applications from 2026 onward, although, in connection with the authoritative accounting principle, pending cases are also intended to be covered by the new rules.

R. Auer / O. Mavher / R. Stegmüller

In its judgment of December 3, 2025, T-646/24, MS KLJUČAROVCI, the European Court dealt with the interpretation of the EU simplification rules for intra-Community triangular transactions under Art 42, 141, and 197 of the VAT Directive in a supply chain involving four parties. The decision focused on the question of whether the triangular transaction simplification can also be applied, if the goods supplied did not physically reach the intermediate purchasers but were delivered directly to the end customer.

E. Freitag / I. Deveci

As part of the “Express Answer Service” (EAS) the Austrian Ministry of Finance has communicated its legal opinion on whether recurring activities of a subcontractor in connection with activities relating to construction, repair and restoration of railway tracks leads to the constitution of a fixed or installation PE within the meaning of article 5 para 1 respectively 3 of the OECD-MTC. An aggregation of times spent by the subcontractor on various railway sections should – according to the opinion of the Austrian Ministry of Finance – only be required, if the project constitutes a coherent whole commercially and geographically.

Such a (geographical) connection is said to be lacking in any case, if the work is carried out in constantly changing sections of the existing rail track systems. However, even a fixed PE within the meaning of article 5 para 1 OECD-MTC would require the permanent exercise of the subcontractor's entrepreneurial activities in relation to the entire railway network (of a country), which, in the opinion of the Federal Ministry of Finance, is generally also not the case for work on constantly changing sections of the railway network. From a practical perspective, the present EAS information in question is to be welcomed, as the Austrian Federal Ministry of Finance applies a comparatively high threshold to the existence of a (de facto) power of disposal over the track systems in question as well as a possible aggregation of performance times.

T. Hahn, J. Pimingstorfer

If a taxpayer is guilty of a financial offense, in general they can obtain immunity from prosecution by disclosing their misconduct in the form of a voluntary disclosure. However, the conditions specified in Art 29 of the Austrian Act on Tax Offences (FinStrG) must be met for this to apply. Unsuccessful voluntary disclosures lead to the liability of the persons mentioned in the disclosure letter.

S. Papst / M. Kabler / N. Tuschel

Due to the Austrian Stamp Duties Act the contracting parties owe a legal transaction fee (“Rechtsgeschäftsgebühr”) as joint debtors. According to the contract, the tenants are responsible for economically paying the fee. As the tax office demands the fee without justification from the landlord, the Austrian Federal Finance Court decided that the Administrative Act is against the law as it violates procedural regulations. The material arguments do not have to be addressed.

C. Endfellner

The Tax Amendment Act 2025 made three significant changes to the right to oral proceedings before the Austrian Federal Finance Court. In future, tax authorities will also be able to request oral proceedings. Additionally, the legal consequences of withdrawing a request for oral proceedings were standardized. Furthermore, the Austrian Federal Finance Court now has the option to refrain from holding requested oral proceedings.

S. Papst / R. Langeneder

The update to the BMF decree introduces significant changes to the formal process, particularly regarding the ZS-QU forms. From a practical perspective, an increase in administrative effort is to be expected, as the tax authorities will now recognize only original documents, and handwritten signatures on the forms will generally be required. Also of utmost practical relevance is when the BMF decree will enter into force and how to handle existing ZS-QU forms, if the originals are not held by the Austrian payer or if the signature requirements are not met.

G. Gottholmseder / M. Barz

The aim of the Fraud Prevention Act 2025 (BBKG 2025) is to create further measures to combat fraud and to further restrict tax avoidance practices. The changes of the Austrian Act on Tax Offences (FinStrG) are presented below in an overview.

S. Papst / M. Kabler

In its judgment of December 11, 2025, C-121/24, Vaniz, the CJEU addressed the question  whether the joint and several liability of a recipient of a supply for unpaid VAT can be assessed although the original taxpayer (supplier)  has already been deleted and no longer exists as a legal entity. The CJEU affirmed this based on Article 205 of the VAT Directive, provided  that the liable taxable person fulfills the conditions laid down in national law and the principles of proportionality and legal certainty are observed.

E. Freitag / I. Deveci 

If additional tax is assessed following a tax audit, the tax authorities are authorised to impose an additional tax of 10% or 15% (tax evasion surcharge), depending on the amount of the additional tax, either upon request or ex officio (sec. 30a Austrian Act on Tax Offences). The basic prerequisite for this, as stipulated in the law, is „suspicion of a financial offense.“ Provided the surcharge and the underlying additional tax claims are paid on time, no penalties will be incurred for financial offences committed in connection with these claims. This means that financial criminal proceedings can be avoided in advance. By raising the limit for additional tax claims from EUR 33.000 to EUR 100.000, the Fraud Prevention Act 2025 has increased the scope for exemption from penalties through paying the surcharge.

S. Papst / R. Langeneder

A decision of the Austrian Federal Finance Court was sent by post to the tax representative of the appellant. The office was already closed on that day, but an employee took over the decision as a gesture of goodwill. Thus, the decision was delivered with legal effect on that day, as the Austrian Administrative Supreme Court recently ruled.

C. Endfellner

The statute of limitations under tax law must always be observed in ongoing compliance, but also in subsequent (criminal tax law) restructuring. According to the Austrian Federal Finance Court, the expiry of the statute of limitations does not result in the extinction of the ‘tax claim’. The statute of limitations provisions only prohibit the assessment of the tax.

Accordingly, timely tax assessment is required for lawful booking to the tax account. The mere payment or renewed ‘self-assessment’ of a tax by the taxpayer does not constitute a basis for booking to the tax account by the tax office.

S. Papst / W. Gurtner

In its decision from October 30^nd, 2025 (C-348/24, Compañía de Distribución Integral Logista, SA), the CJEU dealt with the question, which sale in a series of successive sales is to be considered a “sale for export to the customs territory of the Union” for the purpose of determining the transaction value.

E. Freitag / A. Mühlberger

Transfer pricing adjustments between affiliated companies are necessary to establish an arm's length remuneration for the transaction parties and are a consequence of the respective income tax principle and applicable transfer pricing regulations (Sec 6 No 6 Austrian Income Tax Act). However, the VAT consequences of transfer pricing adjustments are not specifically regulated and are handled differently bv the EU member states. Until recently (see ECJ 4.9.2025, C-726/23, SC Arcomet Towercranes), they were also not explicitly addressed in ECJ case law. In the relevant case currently pending before the ECJ in the case Stellantis Portugal (C-603/24), the much-anticipated Opinion of Advocate General Kokott was recently delivered on 15.1.2026. Unlike in the SC Arcomet Towercranes case, this case concerns a retrospective price adjustment for a supply of goods (the SC Arcomet Towercranes case concerned intra-group services).

According to AG Kokott, only transfer pricing adjustments relating to a specific supply or service should be relevant for VAT purposes if proactively performed by the relevant taxpayer (e.g. as part of a contractually agreed year-end adjustment clause). Adjustments made unilaterally and subsequently by tax authorities (as part of a local tax audit) solely for the purposes of an appropriate allocation of profits between two tax-levying States, on the other hand, should not be relevant for VAT purposes. Whether this statement can also be applied to entrepreneurs who are not fully entitled to deduct input VAT, remains open and is questionable at this point. The fiction of the existence of independent services underlying transfer pricing adjustments (as assumed by the Portuguese tax authorities in the present case) is ruled out by AG Kokott. It remains to be seen how the ECJ will decide on the matter, nevertheless VAT consequences of transfer pricing adjustments should already be considered when drafting the respective underlying intra-group agreements.

T. Hahn / S. Tratlehner / E. Freitag

In its decision of November 11, 2025, Ro 2025/13/0018, the Austrian Administrative Supreme Court clarified that payments a customer is required to make due to a payment default on side of the customer are subject to VAT, even though the service provider refuses to allow the customer to continue using the service as a result of the payment default. According to the Austrian Administrative Supreme Court, the decisive factor is that the amounts owed constitute an integral part of the overall consideration agreed in advance and therefore qualify as an exchange of services.

E. Freitag / K. Pham

The Austrian Ministry of Finance (BMF) confirms that the new rules on home-office permanent establishments, which are included in the updated OECD Model Commentary, will be fully implemented in Austria. Accordingly, the first step is to determine whether work performed in the home office accounts for at least 50%. If this is the case, the second step is to assess whether there is a commercial reason for working from the home office (e.g., regular customer visits near the home office). Only if both conditions are met can a home-office permanent establishment be constituted. The new rules are interpreted by the BMF as clarifications and therefore apply directly, including to all existing Austrian double tax treaties with an OECD‑compliant Article 5(1).

G. Gottholmseder

The Fraud Prevention Act 2025 also includes a new financial offence regarding losses (Art 33, 34 Austrian Act on Tax Offences / FinStrG). Accordingly, anyone who intentionally or grossly negligent declares unlawful losses that can be used to reduce income in future assessment periods is now also liable to prosecution. The new law is to be applied on tax returns submitted from January 1^st 2026 onwards.

S. Papst / N. Tuschel

According to current case law of the Austrian Federal Finance Court, the defendant's interest as set out in the application is irrelevant for access to files in criminal tax proceedings (see Tax News 5/2025). The Fraud Prevention Act 2025 (BBKG 2025) adapts to this case law and thus aligns the Austrian Act on Tax Offences with the Austrian General Federal Fiscal Code. The simplification brought about by the BBKG 2025 is logical and ultimately promotes low-threshold access to the case file and strengthens procedural fairness.

S. Papst / G. Schaunig