AUSTRIA Law and Practice Contributed by: Raphael Holzinger, Matthias Jancura and Claudia Synek, Grant Thornton Austria
11.3 Unique Transfer Pricing Rules or Practices The ATPG generally adhere to the OECD Guidelines and, consequently, there are no unique transfer pricing rules or practices in place. 11.4 Financial Transactions The ATPG generally adhere to the OECD Guidelines with regard to financial transactions, and thus no spe - cific regulations have been implemented. 12. Co-Ordination With Customs Valuation 12.1 Co-Ordination Requirements Between Transfer Pricing and Customs Valuation Austrian rules do not necessitate the co-ordination of transfer pricing and customs valuation. However, it is imperative to acknowledge that ‒ if any adjustments pertaining to transactions subject to customs are to be made – the relevant costs must be given due con - sideration. 13. Controversy Process 13.1 Options and Requirements in Transfer Pricing Controversies It is an uncommon occurrence for the ATA to under - take an audit that is solely concerned with transfer pricing. Nevertheless, transfer prices are progressively becoming the primary focus of tax audits. In the event of transfer prices being adjusted by the ATA during a tax audit, the taxpayer has the right to challenge the results in an administrative appeal pro - ceeding by filing an appeal – ie, initiating a proceeding before the Federal Fiscal Court ( Bundesfinanzgesetz , or BFG; previously Unabhängiger Finanzsenat , or UFS) – within one month of the date of the adminis - trative decree with the ATA. Following the submission of an appeal, the ATA are required to deliver a preliminary decision within a peri - od of six months, unless the complainant directly peti - tions for a ruling by the Federal Fiscal Court and the administrative authority duly presents the complaint to
the aforementioned court within a three-month time - frame. In the absence of such a demand, the ATA will issue a preliminary decision at the administrative level, which may be contested by petitioning the administra - tive authority to submit the complaint to the Federal Fiscal Court. The Federal Fiscal Court will then hear the case at a second stage. In the third stage, taxpayers or the ATA are permit - ted to lodge an appeal with the Supreme Administra - tive Court ( Verwaltungsgerichtshof , or VwGH) and/or the Constitutional Court ( Verfassungsgerichtshof , or VfGH) within a period of six weeks from the decision of the Federal Fiscal Court. Moreover, in instances where the applicability of European law to national court proceedings is ambiguous or its interpretation is unclear, the matter can be referred to the ECJ for a preliminary ruling. Furthermore, it is worth noting that an appeal does not have the effect of postponing the collection or enforced collection of the tax in question; that said, it is possible to submit a request for the suspension of levying to the relevant ATA in the event of a tax demand being issued. Such a request is usually grant - ed, unless there are exceptional circumstances to the contrary. 14. Judicial Precedent 14.1 Judicial Precedent on Transfer Pricing The case law surrounding transfer pricing in Austria is, at present, moderately developed. Consequently, European (international) case law is utilised wherever reasonably possible. 14.2 Significant Court Rulings The most relevant court decisions regarding transfer pricing (both from the VwGH and the BFG) are as fol - lows. Most of those decisions are also included within the ATPG. • VwGH 27 November 2020, Ra 2019/15/0162 – based on this decision, the legal owner of an intangible is generally relevant for transfer pricing reasons. However, if the actual behaviour deviates from the contractual agreements or if there are no
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