Austria: Draft law implementing public country-by-country reporting

The Federal Ministry of Justice published a draft law implementing the EU public country-by-country (CbC) reporting directive (EU Directive 2021/2101)—the Federal Act on the Publication of Country-by-Country Income Tax Information Reports (CBCR Publication Act – CbCR-VG). The provisions of the draft law are largely aligned with the EU public CbC directive.

The draft law covers corporations, registered partnerships with their registered office in Austria, and domestic branches of a legal entity not subject to the law of an EU or EEA member state but having a legal form comparable to one listed in Annex I of Directive 2013/34/EU.

The reporting obligation would apply to companies or groups with revenue exceeding €750 million on the two previous reporting dates.

The draft law would apply the two options under the EU public CbC directive—the “safeguard clause” and the “website publication exemption.” The “safeguard clause” would allow in-scope groups to temporarily omit for a maximum of five years information that would cause a significant disadvantage to the companies concerned, provided they can justify the reason for the omission. Based on the draft law (which deviates from the directive), the Austrian Commercial Registry Court would have the authority to scrutinize the use of the omission (procedural costs and a fee up to €20,000 could apply).

In addition, Austria would adopt the website publication exemption in line with the directive, which exempts companies from publishing the report on their websites, if the report is already made publicly available to any third party located in the EU, free of charge, on the website of the Austrian Commercial Registry Court.

The public CbC report would need to include the name of the ultimate parent company, the financial year, the currency used, a list of all subsidiaries, a brief description of their activities, the number of employees, and the income generated in the reporting year.

Reporting obligation for ultimate parent companies and unrelated companies
In general, representatives of the ultimate parent company domiciled in Austria would be obliged to prepare and submit the public CbC report if the turnover threshold is exceeded in the two preceding financial years. The obligation would only apply to ultimate parent companies or unrelated companies that have at least one of the following forms of business operations in at least one other country: subsidiary, branch, fixed place of business, or permanent business activity.

Reporting obligation for subsidiaries and branches of ultimate parent companies in third countries
Representatives of a medium-sized or a large corporation according to the Austrian Company Code that is a subsidiary of an ultimate parent company would be subject to the reporting obligation if the ultimate parent company is not domiciled in the EU or EEA but fulfills the requirements of public CbC reporting as defined in the draft law.

The thresholds applicable to subsidiaries would be:

• Balance sheet greater than €20 million
• Net turnover greater than €40 million  
• Average number of employees exceeding 50

At least two out of these three thresholds must be exceeded in order for the subsidiary to be in scope of the rules in Austria.   

The threshold applicable to branches caught by the provisions of the bill would be a net turnover of €10 million in the last two financial years. The reporting obligation would end only if the threshold were not reached for two consecutive financial years.

Accordingly, representatives of a domestic subsidiary or branch whose ultimate parent company is not resident in the EU or EEA generally would be obliged to submit the complete CbC report of their ultimate parent company. If the information is not available to such a subsidiary or branch, the representatives of the subsidiary or branch must prepare an income tax information report with all the information available to them and submit it together with a declaration that the ultimate parent company or the unrelated company has not provided the required information.

Exemption for subsidiaries and branches
Austrian subsidiaries or branches of groups headquartered outside the EU/EEA would be exempt from the public CbC report requirement in Austria only if the ultimate parent company prepares and publishes the report on its website and assigns another EU/EEA subsidiary or branch to file the report locally (the directive only prescribes this exemption for reports filed in an EU Member State). However, Austrian subsidiary / branches must notify the Austrian Commercial Registry Court of their use of this exemption.

Further exemptions are not provided in the draft law. Therefore, if the ultimate parent company headquartered outside the EU/EEA does not prepare a corresponding public CbCR within the specified period for the relevant financial year and make it publicly available on its website in at least one of the official languages of the EU free of charge and in an electronic, machine-readable format, this obligation would again fall to the representatives of the Austrian subsidiary or branch concerned.

Exemptions from the reporting obligation
The draft law would exempt credit institutions and investment firms whose notes include the list pursuant to Section 64 para. 1 no. 18 of the Austrian Banking Act (BWG), Federal Law Gazette No. 532/1993 or Section 17 of the Austrian Investment Firms Act (WPFG), Federal Law Gazette I No. 237/2022, from the obligation to prepare an income tax information report if this information relates to all activities of the credit institution and, if applicable, all affiliated companies included in the consolidated financial statements. The utilization of this exemption must be notified to the Commercial Register Court no later than one year after the end of the financial year in question.

The report must be submitted in electronic form to the commercial register court at the registered office of the corporation no later than 12 months after the end of the financial year.

The data must be disclosed for all EU states and for all states on the so-called EU blacklist ("non-cooperative tax jurisdictions") in a single amount for each individual tax jurisdiction. For other countries, the data must be disclosed in aggregated form.

In order to avoid additional administrative work, companies would have the option of adopting and reporting the information from the CbC report for tax purposes in accordance with Section 9 (3) of the draft opinion on the CBCR-VG.

In addition to the reporting obligation, there would also be an audit obligation. Accordingly, the auditor of the annual financial statements must assess whether the company was obliged to disclose an income tax information report and whether it has fulfilled its disclosure obligation. However, this is not intended to be an obligation to audit the content. Nevertheless, a company could voluntarily instruct the auditor of the annual financial statements to carry out a substantive audit at any time.

Failure to publish public CbC reports or submitting them incorrectly or late may result in penalties of up to €10,000. Furthermore, representatives of non-compliant companies could face fines of up to €100,000.

The obligations to prepare and publish a public CbC report would apply for the first time for all financial years beginning after 21 June 2024. For financial years with the same calendar year, a public CbCR must therefore be prepared and published for the first time for 2025.
 

For more information, contact a KPMG tax professional in Austria:

Werner Rosar | wrosar@kpmg.at

Theresa Tanzer | ttanzer@kpmg.at