AUSTRIA Law and Practice Contributed by: Clemens Philipp Schindler and Mohamed Hemdan, Schindler Attorneys
• where a person intentionally causes a reduction of VAT by failing to submit advance notifications under Section 21 of the VAT Act, or causes a reduction of wage tax, the employer’s contribution to the Family Burden Equalisation Fund, or related surcharges by breaching payroll record obligations under Section 76 of the Income Tax Act and related regulations; • where a person intentionally causes a reduction of taxes by using goods for which preferential tax treatment was granted for purposes other than those qualifying for such treatment without prior notification to the tax authority; or • where a person wrongfully declares losses. The latter offence variant was only recently introduced by the Fraud Prevention Act 2025 ( Betrugsbekämp- fungsgesetz , BBKG 2025) on 1 January 2026. Pre - viously – ie, before 2026 – if an excessive loss was declared in a given tax year, the declaration itself was not punishable because no tax reduction had yet occurred, meaning that criminal liability could arise only in a subsequent year if the unjustified loss dec - laration resulted in a reduction of tax payable in that later period. Tax Fraud Tax fraud is regarded as a qualified form of tax eva - sion and is defined in Section 39 of the Austrian Fiscal Criminal Act. It applies where a person commits tax evasion, smuggling, evasion of import or export duties, or duty fencing under Section 37 of the Act, and the imposition of penalties is exclusively reserved to the courts (ie, the offence is committed with (conditional) intent and the evaded value exceeds EUR150,000) and the offence is committed by using one of the fol - lowing methods: • the use of false or falsified documents, data or other evidence, with the exception of untrue tax declarations, registrations, notifications, records and determinations of taxable income required under tax, monopoly or customs law; • the use of fictitious transactions or other fictitious acts (Section 23 of the Federal Fiscal Code); or • manipulation of computer-generated books or records required under tax or monopoly law
through the design or use of software capable of altering, deleting or suppressing data. Anti-Tax Avoidance and Anti-Abuse Rules Austrian anti-tax avoidance and anti-abuse rules have to be distinguished from offences under criminal tax law, as they constitute overarching principles inherent to Austrian tax law. In particular, these rules do not themselves establish a criminal offence, nor may the intent to circumvent them (automatically) be equated with the intent required for tax evasion or tax fraud under the Fiscal Criminal Act. The main anti-avoid - ance rules in Austria are set out in the Austrian Federal Fiscal Code. Section 22 of the Federal Fiscal Code provides for the main general anti-avoidance rule that applies in the case of abusive tax structures, which is the case where a legal structure only makes sense when tak - ing into account the related tax-saving effect, given that the main purpose or one of the main purposes is to obtain a tax advantage that defeats the object or purpose of the applicable tax law. According to the administrative guidelines, abuse is generally presumed only in multi-step schemes and can be rebutted with valid economic reasons. None - theless, it is considered that an abuse within the meaning of Section 22 of the Federal Fiscal Code, in conjunction with Section 44 of the Reorganisation Tax Act as amended by the 2018 Annual Tax Act, must, in principle, be assessed regardless of whether a spe - cific objective is achieved through a single reorganisa - tion step or a multi-step process. In this regard, the 2018 Annual Tax Act introduced a statutory definition of Section 22 of the Federal Fiscal Code in line with the EU Anti-Tax Avoidance Directive (ATAD), appli - cable to arrangements from 1 January 2019, under which an arrangement is deemed abusive if its essen - tial purpose is to secure a tax advantage contrary to the law, unless valid economic reasons exist. Practically speaking, Section 23 of the Austrian Fed - eral Fiscal Code is applied less frequently than Sec - tion 22, but it states that transactions or acts that are not genuinely intended by the parties involved (“sham transactions”), performed solely to conceal facts rel - evant for taxation purposes, will be disregarded and
38 CHAMBERS.COM
Powered by FlippingBook