AUSTRIA Law and Practice Contributed by: Raphael Holzinger, Julia Hochreiter, Matthias Jancura and Claudia Synek, Grant Thornton Austria
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 proceeding by filing an appeal – ie, initi - ating a proceeding in front of the Federal Fiscal Court ( Bundesfinanzgesetz , or BFG; previously Unabhängiger Finanzsenat , or UFS) – within one month of the date of the administrative decree with the ATA. Following the submission of an appeal, the ATA are required to deliver a preliminary decision within a period of six months, unless the com - plainant directly petitions for a ruling by the Fed - eral Fiscal Court and the administrative authority duly presents the complaint to the aforemen - tioned court within a three-month timeframe. 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 administrative 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 per - mitted to lodge an appeal with the Supreme Administrative Court ( Verwaltungsgerichtshof , or VwGH) and/or the Constitutional Court ( Ver- fassungsgerichtshof , 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 col -
lection or enforced collection of the tax in ques - tion; that being said, it is possible to submit a request for the suspension of levying to the rel - evant ATA in the event of a tax demand being issued. Such a request is usually granted, unless there are exceptional circumstances to the con - trary. 14. Judicial Precedent 14.1 Judicial Precedent on Transfer Pricing The case law surrounding transfer pricing in Aus - tria is, at present, moderately developed. Con - sequently, 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 follows. 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 behav - iour deviates from the contractual agreements or if there are no written agreements, the economic ownership is relevant. • VwGH 4 September 2014, Ra 2012/15/0226 – for a functional allocation to the perma - nent establishment, the core activity must be carried out in the source state, whereby the place of work typical for the job profile is decisive. • VwGH 20 October 2009, Ra 2006/13/0116 – if an arm’s length price cannot be determined using the comparable uncontrolled price method, the service of the permanent estab - lishment will generally have to be invoiced at
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