AUSTRIA Law and Practice Contributed by: Raphael Holzinger, Julia Hochreiter, Matthias Jancura and Claudia Synek, Grant Thornton Austria
Unilateral advance rulings according to Sec - tion 118 of the FFC are available for several tax areas, including “international tax law” , which also covers transfer pricing issues. However, the ATA typically do not confirm the correctness of specific transfer prices under particular facts and circumstances in such unilateral advance rulings. They usually only give answers to legal questions raised by taxpayers that will occur in future cases, if the legal questions are of par - ticular interest. In instances where the under - lying facts and circumstances are identical or only differ marginally upon materialisation, the result of the unilateral advance ruling becomes legally binding for the ATA. According to the law, the ATA are required to conclude a unilateral advance ruling case within a maximum period of two months after filing of the ruling request; however, in practice, this waiting period is often significantly longer. Besides unilateral advance rulings, express answer service (EAS) requests can also be filed to the Federal Ministry of Finance. In principle, the EAS is similar to the unilateral advance rul - ing; however, the result of an EAS can never be legally binding, and good faith is the only principle to be observed. As with the unilateral advance ruling, an EAS cannot provide con - crete answers to a concrete transfer price under concrete facts and circumstances but can only answer legal questions. There is no charge for an EAS. It is also noteworthy that the Federal Ministry of Finance generally responds promptly to EAS requests. It is evident that bilateral and multilateral APAs both result in a degree of legal certainty that surpasses that of the unilateral advance ruling/ EAS, given that the tax authorities of the partner state have already been engaged. In contrast, the unilateral advance ruling/EAS cannot be
regarded as having any binding authority over the tax authorities of the partner state. 7.5 APA Application Deadlines The timeframe for submission of an APA, wheth - er bilateral or multilateral, is contingent upon the specific provisions outlined in the relevant dou - ble taxation convention. However, it should be noted that this deadline exclusively pertains to prospective transactions. Furthermore, the ini - tiation of a unilateral advance ruling is permis - sible under specific circumstances – namely, the presence of new information that emerges prior to the execution of the transaction in ques - tion. To illustrate, it is conceivable to submit a unilateral advance ruling request in FY 2025 for a transaction (transfer pricing setting) that will transpire for the first time in FY 2026. 7.6 APA User Fees The fees for the unilateral advance ruling are dependent on the taxpayer’s turnover and range from EUR1,500 to EUR20,000 per case. It should be noted that additional consulting fees may be incurred for such unilateral advance ruling. No financial compensation is levied for bilateral and multilateral APAs or mutual agreement pro - cedures, with the exception of consulting fees that may be incurred. 7.7 Duration of APA Cover Unilateral advance rulings as well as bilateral and multilateral APAs or mutual agreement pro - cedures typically cover periods of three years. 7.8 Retroactive Effect for APAs A unilateral advance ruling as well as a bilateral and multilateral APA generally have no retroac - tive effect.
36
CHAMBERS.COM
Powered by FlippingBook