AUSTRIA Law and Practice Contributed by: Oliver Völkel, Jara Erhard and Bryan Hollmann, CERHA HEMPEL
Establishing banking relationships Banks are required to conduct their own risk assess- ments under the Austrian Financial Markets Anti-Mon- ey Laundering Act ( Finanzmarktgeldwäschegesetz , FM-GwG) and may be reluctant to onboard crypto businesses due to perceived enhanced AML/CFT risks. This risk-averse posture can make it difficult for crypto firms – particularly newer or smaller entities – to establish banking relationships, even where no legal prohibition exists. Where a CASP’s business model involves holding clients’ funds (other than e-money tokens), it must deposit those funds, by the end of the business day following receipt, with an EU CRR credit institution or an (EU) central bank. Selection of banking partners Restrictions/Issues for CASPs Safeguarding of client funds Besides the aforementioned, as part of the CASP authorisation process, the FMA requires firms to explain the criteria they use to select these credit institutions (for example, financial stability, reputation, regulatory compliance and risk management) and how frequently this choice is reviewed, including any diver- sification strategy where applicable. This effectively turns the selection of banking partners into a super- vised risk-management decision rather than a purely commercial one. 1.2.3 ESG/Sustainable Finance Austrian law does not provide for ESG requirements. Note, however, that MiCA mandates that issuers of crypto-assets as well as CASPs must disclose the principal adverse impacts of the technology underly- ing a certain crypto-asset on the environment, spe- cifically related to the consensus mechanisms used. This includes the environmental and climate-related impacts of mining or other processes used to validate transactions on the blockchain. 1.2.4 Tax Tax Regime While Austrian law has largely adopted the term “crypto-asset” following the applicability of MiCA, the Income Tax Act continues to refer to “cryptocur- rencies”, a definition carried over from the Fifth Anti-
Money Laundering Directive. In simple terms, crypto- currencies are understood as digital representations of value used as a means of exchange and can be seen as a subset of the broader MiCA concept of crypto-assets (which also covers digital representa- tions of rights). Income from cryptocurrencies is classified as income from capital, subjected to a special tax rate of 27.5%. This encompasses income from staking, airdrops, bounties, and hard forks, which are taxed upon sale rather than receipt. For domestic taxpayers, capi- tal gains from cryptocurrency transactions must be reported, and capital gains tax (KESt) must be deduct- ed by CASPs headquartered in Austria. Reporting Obligations The EU’s DAC8 directive has been implemented in national law through the Krypto ‑ Meldepflichtgesetz (Krypto‑MPfG), which entered into force on 1 Janu- ary 2026. It introduces stricter reporting obligations for crypto-assets to improve tax transparency and combat tax evasion and money laundering. In general, CASPs are now obligated to provide reports on three primary categories of information: • information on the reporting crypto-asset service provider; • information on reportable crypto-asset users; and • information on reportable crypto-assets and their reportable transactions. These reports will be shared among EU member states to strengthen cross-border tax oversight. 1.2.5 Insolvency Implementation Under Austrian Law In Austria, the Insolvency Act ( Insolvenzordnung , IO) stipulates that crypto-assets can generally be part of the insolvency estate. The Act grants a right to segre- gation to anyone who can show that they have certain rights in rem or personal rights to crypto-assets in the insolvency estate. Whether a right to segregation exists must be assessed exclusively in accordance with the general principles of Austrian property law. The most frequent reason for segregation is own- ership or co-ownership. Therefore, to comply with MiCA’s segregation requirement, it must be ensured
41 CHAMBERS.COM
Powered by FlippingBook