Professional Documents
Culture Documents
TABLE OF CONTENTS 3
Table of Contents
About the Global Forum 5 Executive Summary 7 Introduction11 Information and methodology used for the peer review of Austria11 Overview of Austria 12 Recent developments17 Compliance with the Standards 19 A. Availability of Information 19 Overview 19 A.1. Ownership and identity information 21 A.2. Accounting records 58 A.3. Banking information 64 B. Access to Information 67 Overview 67 B.1. Competent Authoritys ability to obtain and provide information 68 B.2. Notification requirements and rights and safeguards 78 C. Exchanging Information 83 Overview 83 C.1. Exchange of information mechanisms 85 C.2. Exchange of information mechanisms with all relevant partners 93 C.3. Confidentiality 96 C.4. Rights and safeguards of taxpayers and third parties 98 C.5. Timeliness of responses to requests for information 99
4 TABLE OF CONTENTS Summary of Determinations and FactorsUnderlyingRecommendations 107 Annex 1:Jurisdictions Response to the Review Report113 Annex 2:List of All Exchange-of-Information Mechanisms inForce115 Annex3:List of All Laws, Regulations and Other Material Received121 Annex4:People Interviewed During On-site Visit 123
EXECUTIVE SUMMARY 7
Executive Summary
1. This report summarises the legal and regulatory framework for transparency and exchange of information for tax purposes in Austria, together with the practical implementation of that framework. The international standard laid down in the terms of reference of the Global Forum for monitoring and reviewing progress towards transparency and exchange of information, considers the availability of relevant information within a given jurisdiction, the ability of the competent authority to access it swiftly, and whether the information may be exchanged effectively with its partners in information exchange. The assessment of effectiveness in practice has been performed in relation to a three year period (2009 to 2011). 2. Since its commitment to the international standards of transparency and exchange of information, in March 2009, Austria has negotiated several exchange of information mechanisms that incorporate the full text of Article26 of the OECD Model Tax Convention or comparable provisions and is also party to the EU Administrative Cooperation Directive 2011/16/EU which provides for exchange of information (EOI) to the standard. In all 39 of the 92 EOI relationships entered into by Austria now provide for the exchange of bank information to the standard. 33 relationships are in force. 3. In the case of 9 arrangements Belgium; Bosnia and Herzegovina; Bulgaria;Luxembourg; Mexico; Qatar; Serbia; South Africa and Tajikistan the obligations stipulated have been found not to be fully in line with the standard because of an issue concerning the obligations for an EOI partner to provide certain identity information in their EOI requests. Since its phase1 review, the convention and protocols with Hong Kong, China; San Marino; Singapore and Switzerland have either been amended or clarified to bring them in line with the standard. Belgium, Bulgaria and Luxembourg are also covered by the new EU Administrative Cooperation Directive 2011/16/EU. Austria should nevertheless ensure that all the mechanisms concluded with its partners will lead to effective exchange of information in accordance with the standard. 4. In order to give effect to these mechanisms, the Austrian competent authority for international exchange of information in tax matters, the Federal Ministry of Finance, has broad powers to access ownership and accounting
8 EXECUTIVE SUMMARY
information from legal and natural persons. Austria also recently introduced specific legislation governing access to information of a banking nature. This legislation expressly lifts bank secrecy when the request is made under an EOI mechanism including a provision equivalent to paragraph5 of Article26 of the OECD Model Tax Convention. This access to bank information is allowed under the condition that the person concerned by the request is first notified that the information is being obtained by the competent authority in order to respond to an international request for information. Austria should however ensure that this process allows for exceptions as required by the international standard. Austria had no experience in accessing bank information for EOI purposes following the introduction of the recent legislation lifting bank secrecy, since it has not received any requests under a EOI mechanism which includes the appropriate provision pertaining to this type of information. Austria should monitor its new procedure to make sure that it can access bank information in accordance with the international standard. 5. Though Austrian law generally guarantees the availability of information on the owners of companies and partnerships, there are insufficient mechanisms to ensure the availability of information on holders of bearer shares issued by joint-stock corporations and European companies in all circumstances. Therefore, element A.1 is assessed as not being in place. Since its phase1 review, Austria has adopted new provisions prohibiting the issue of bearer shares by unlisted joint stock companies. There are however neither incentives nor specific sanctions to ensure that all bearer shares issued by unlisted companies will be converted into registered shares before 1January 2014, the timeline for conversion provided by law, and Austria should address this deficiency. 6. All companies and partnerships must register with the business register and the revenue authorities. To this extent detailed ownership information must be provided by partnerships and limited liability companies. While joint-stock companies and co-operatives are not subject to such requirements, these two types of companies must maintain a register of all registered shares or a register of members. Based on the 13 EOI requests for ownership information, in respect of which Austria has provided assistance, Austria has sufficient practical mechanisms in place to ensure that it can obtain information in practice. 7. Ownership information on foundations, whether public or private, is available due to the multiple requirements these entities are subject. While Austria does not recognise trusts, ownership information relating to these arrangements is available under the anti-money laundering requirements applying to trust service providers. The situation is the same for Treuhand (Austrian fiduciary relationship) where these requirements are also supplemented by a partial registration system. Austrian legislation also guarantees
EXECUTIVE SUMMARY 9
the availability of accounting information for companies, partnerships and foundations due to the requirements provided for by commercial laws and tax legislation. Professional trustees and Treuhnder must keep accounting records except in some specific situations. Comprehensive anti-money laundering requirements make detailed bank information available in Austria. 8. Austria has in place a system of responses to incoming requests that is professional, in the sense that it provides all types of information accurately and respects the needs of confidentiality. Peer inputs have indicated that the peers are generally satisfied with the quality of information provided by Austria. The practices followed by Austria show that the information requested is in most instances provided in a timely manner. Statistics show that out of 829 requests received during the three year review period Austria answered 589 requests (71%) in less than 90 days. However, Austrias partners have indicated that Austria does not routinely provide an update of status when not in a position to provide the requested information in 90 days. 9. A follow up report on the steps undertaken by Austria to answer the recommendations made in this report should be provided to the PRG within twelve months after the adoption of this report. An interim report should be provided to the PRG within six months after the adoption of this report.
INTRODUCTION 11
Introduction
12 INTRODUCTION
following a jurisdictions Phase2 review, a rating will be applied to each of the essential elements to reflect the overall position of a jurisdiction. However, this rating will only be published at such time as a representative subset of Phase2 review is completed. This report therefore includes recommendations in respect of Austrias legal and regulatory framework and the actual implementation of the essential elements, as well as a determination on the legal and regulatory framework, but it does not include a rating of the elements (see Summary of Determinations and Factors Underlying Recommendations at the end of this report). 12. The phase1 assessment was conducted by a team which consisted of two expert assessors and one representative of the Global Forum Secretariat: Advocate Hilary Pullum, Legislative Counsel of Guernsey; Mr Jesper Vestergaard Senior Legal Adviser in the Danish Ministry of Taxation; and Mr. Rmi Verneau from the Secretariat to the Global Forum. 13. The phase2 assessment was conducted by a team consisting of three expert assessors and two representatives of the Global Forum Secretariat: Ms. Merete Helle Hansen, Senior Adviser in the Ministry of Taxation of Denmark; Ms. Lilian Birkemose, Senior EOI officer of the Danish Competent Authority; Mr. Nigel Garland, Deputy Director (Compliance and International), Guernsey; and Mr.Rmi Verneau and Mr. Bhaskar Goswami from the Secretariat to the Global Forum. The team evaluated the implementation and effectiveness of Austrias legal and regulatory framework for transparency and exchange of information and its relevant information exchange mechanisms.
Overview of Austria
14. Located in central Europe, Austria is a country with a land area of 84000 km and 8.4million inhabitants. Austria is surrounded by eight countries: Germany and the Czech Republic to the north, the Slovak Republic and Hungary to the east, Italy and Slovenia to the south, and Switzerland and Liechtenstein to the west. The capital of Austria is Vienna, with about the quarter of the Austrian population. German is Austrias national language while Croatian, Hungarian and Slovenian are official languages at a local level. Since 1999, the Austrian currency has been the Euro. 15. Austria is an advanced developed country where in 2012 services accounted for 69.4% of the GDP, industry 29.1% and agriculture 1.5%.1 Austrias main economic sectors are production of goods for exports, tourism and financial services. European Union members represent more than 70% of Austrian international trade, with Germany, Italy, and Switzerland being its
1. Information available on the Statistik Austria website, www.statistik.at/web_en/.
INTRODUCTION 13
main trading partners. Austria is one of the most developed countries in the world with a GDP per capita of USD42400 (EUR317002) in 2011. 16. Austria has been a member of the United Nations since 1955, is a founding member of the Organisation for Economic Co-operation and Development (OECD) and joined the European Union (EU) in 1995. Austria is member of the Global Forum on Transparency and Exchange of Information for Tax Purposes.
General information on legal system and the taxation system Legal system
17. Austria is a parliamentary democratic republic established as a federal State comprising nine Lnder (states). These Lnder exercise all of the rights which have not been assigned to the Federation (Bund). The Federations Legislative power is exercised by the Parliament which is constituted of two chambers, the Nationalrat (Chamber of Representatives) and the Bundersrat (Chamber of States). All Nationalrat members are directly elected on a proportional basis for a five year term. The Nationalrat takes precedence over the Bundesrat except when the rights of the Lnder are concerned. Each Land also has its own parliament which exercises the legislative powers within its own domestic competence, the Landtag. 18. The Bunds Executive power belongs to the government led by the Bundeskanzler (Federal Chancellor). The Bundeskanzler is appointed by the Bundesprsident (President of the Federation) elected for a six years term by direct universal suffrage. The Bundesprsident is the head of the State, head of army and represents Austria abroad. The Bundeskanzler exercises all functions that are not assigned to the Bundesprsident by the Constitution. 19. The Austrian legal system is founded on Roman law, also known as civil law. The hierarchy of sources is ordered as follows: the Federal Constitution of 1920 as amended, international treaties with constitutional rank (e.g.the European Convention on Human Rights), laws and, in turn, regulations. According to the Austrian Constitution, Federal law and Lnder law have the same status. Nevertheless, the civil, entrepreneurial, criminal and financial law (including tax and anti-money laundering legislation) are part of the Bund legislation and apply throughout Austria. 20. International treaties are a source of law under Article50 of the Austrian Constitution. They are concluded by the Federal President acting on the proposal of the Federal Government. If their character is political, or if they change or supplement statutory law, the approval of the National Council
2. Using 11February 2013 exchange rates.
14 INTRODUCTION
is required. The Council may decide that the treaty is non-self-executing, i.e.needs to be implemented by additional legislation. However, all tax treaties signed by Austria are considered to be self-executing. This means that the provisions of a tax treaty are directly incorporated into the domestic law. Even though tax treaties, after incorporation into domestic law, are formally at the level of ordinary statutory law, they are regarded as lex specialis and consequently have supremacy over ordinary statutory law. 21. Judges are independent in the exercise of their functions. They are appointed by the Bundesprsident. Within the judicial system, a distinction is drawn between: Private law tribunals have jurisdiction to hear all civil and criminal matters and organised on local and regional levels (district courts Bezirksgerichte and state courts Landes-gerichte) with four Court of Appeal acting as a second instance court; and Independent administrative tribunals have jurisdiction to review the legality of decisions and the exercise of powers by the administrative authorities. This includes all cases relating to tax matters. The Supreme Court and the Administrative Supreme Court are respectively the highest judicial instances in Austria for civil and criminal matters, and administrative cases. Finally the Constitutional Court examines the conformity of statutes with the constitution and can annul unconstitutional laws, and at the request of the Bund or Lnder, the Court can rule on the extent of their executive or legislative powers, which ruling has binding effect.
Taxation system
22. The power to legislate in tax matters comes at the Federal level. Tax matters are regulated by the Federal Fiscal Code (hereafter BAO) which addresses procedural aspects, and by special laws such as the Income Tax Act (EStG), the Corporation Tax Act (KStG) and the Value-Added Tax Act (UStG ). In Austria, income is subject to two main taxes: income tax for individuals and corporate tax for companies. 23. According to the EStG individuals are subject to unlimited tax liability when they have their residence in Austria and are liable to tax on their worldwide income. Individuals that are not deemed to be residents of Austria for tax purposes are taxed on income from Austrian sources only. Income such as salaries or income from capital is subject to a withholding tax while other income is subject to a taxation scale comprising four rates, from 0% (income up to EUR11000) to 50% (income over EUR60000).
INTRODUCTION 15
24. All legal entities organised under private law (e.g.joint stock companies, limited liability companies, foundations, and co-operatives) as well as public entities carrying on commercial activity are subject to corporation tax. When these entities are resident in Austria for tax purposes, i.e.when they have their seat or place of effective management in Austria, they are liable to tax on their worldwide income while when the entities are not tax resident in Austria their Austrian tax liability is limited to income from Austrian source. The corporate tax is levied at the nominal rate of 25% with a minimum tax of EUR3500 for joint stock companies and EUR1750 for limited liability companies. 25. As a member of the European Union, Austria is a member of the European common value-added tax (VAT) system. The normal rate of VAT is 20% and the reduced rate 10%. 26. In 2011(last data available): VAT total revenue was EUR23.39billion and 33.48% of Austria total tax revenues; individuals income tax total revenue was EUR25.72billion and 36.82% of Austria total tax revenues; and corporate tax total revenue was EUR5.27billion, 7.55% of Austria total tax revenues.
27. Austrias network of mechanisms allowing for international exchange of information (EOI) in tax matters currently covers 92 jurisdictions, 87 by way of double tax conventions (DTCs) and 5 by way of tax information exchange agreements (TIEAs). Since March 2009 and its commitment to the international standards for transparency and exchange of information in tax matters, Austria has only concluded EOI agreements incorporating the full text of Article26 of the OECD Model Tax Convention, in particular as regards information held by banks and financial institutions. 40 EOI arrangements allowing for the exchange of bank information have been signed so far by Austria. 28. A new EU Administrative Co-operation Directive 2011/16/EU which allows EOI to the standard to take place was adopted by the European Council on 15February 2011 and came into effect on 1January 2013. This multilateral tool will allow for exchange of information to the standard with 14 more partners. This has been transposed into Austrian law with the Austrian EU Mutual Assistance Act, Federal Law Gazette No I 112/2012.
16 INTRODUCTION
Overview of commercial laws and other relevant factors for exchange of information Overview of financial sector and relevant professions
29. At the end of 2010, Austria had a developed and diversified financial sector contributing to 5.6% of national GDP. At that date, the Austrian financial sector comprised 843 banks3, 99 investment firms, 163 investment service providers, 29 investment funds management companies and 2158 domestic investment funds, amongst other entities. In 2011 the total size of the balance sheets of banks in Austria was EUR992billion. In the same year the net asset value of investment funds was EUR137billion and the total assets of pension funds was EUR15billion. 30. The financial sector is regulated by the Federal Banking Act (Bankwesengesetz) No532/1993 adopted in 1993 as amended. This sector is under the supervision and regulation of the Financial Market Authority (FMA), an independent body under public law placed under direct parliamentary control. The FMAs functions include issuing regulations, granting licenses to financial professionals as well as supervising and enforcing prudential and AML/CFT requirement. Domestic financial institution carrying on limited specialised financial business and insurance intermediaries are directly supervised by the local district authorities. Since 2008, the Austrian National Bank has the sole responsibility for conducting offsite monitoring and onsite examinations of banks. 31. In Austria, civil law notaries (appr. 500), lawyers (more than 5000), and accountants (more than 10000 businesses) are considered to be designated non-financial businesses and professions under the scope of the anti-money laundering legislation and are accordingly required to perform customer due diligence (CDD). All these professionals are under the supervision of professional supervisory authorities.
3.
Of which, 539 were rural credit co-operatives providing limited services, while there were 47 joint-stock and private banks, 54 saving banks and 67 industrial credit banks.
INTRODUCTION 17
system for the purpose of money laundering and terrorist financing.4 This legislation was transposed in Austrian law with effect as of 1January 2008. 33. An assessment of the Austrian AML/CFT legal and regulatory framework was conducted by the IMF (International Monetary Fund) and the FATF (Financial Action Task Force) in 2008.5 The report published in 2009 shows that Austrian authorities have implemented a comprehensive AML/CFT system supported by well developed federal administrative and supervisory bodies. Further, the report noted that the Austrian registration system is well developed though access to information on some entities is sometimes missing. According to the report, CDD is usually in line with the FATF Recommendations even if exceptions to these requirements are in some circumstances too broad, while record keeping requirements set out by the Austrian law meet the international standard. The Austrian AML/CFT system was strengthened since the last evaluation performed by the FATF. In particular, the Banking Act was amended in July 2010 following the conclusions of the IMF/FATF report as regards savings deposit accounts with a balance lower than EUR15000.
Recent developments
34. Austria has recently signed eight new agreements allowing for exchange of bank information. Furthermore, on 29May 2013, Austria signed the Multilateral Convention on Mutual Administrative Assistance in Tax Matters, which following its entry into force in Austria will allow for the exchange of information to the standard with 14 more partners.
4. 5.
A. Availability of Information
Overview
35. Effective exchange of information requires the availability of reliable information. In particular, it requires information on the identity of owners and other stakeholders as well as accounting information on the transactions carried out by entities and other organisational structures. Such information may be kept for tax, regulatory, commercial or other reasons. If information is not kept or the information is not maintained for a reasonable period of time, a jurisdictions competent authority may not be able to obtain and provide it when requested. This section of the report assesses the adequacy of the Austrias legal and regulatory framework on availability of information. It also assesses the implementation and effectiveness of this framework in practice. 36. Austria has a sound legal and regulatory framework which ensures that information concerning the identity of owners and shareholders in companies and partnerships is usually available to the authorities. All such entities have to be registered by the local competent court in the Firmenbuch, the Austrian register of businesses. For registration, partnerships and limited liability companies must provide information on the identity of all their shareholders and partners and the Austrian legislation requires this information be updated without delay if there is any change. The phase2 review of Austria has noted that there are sufficient and workable mechanisms present
Obligations. As a result of this supervision, banking records are maintained in a proper way and for at least 5 years, making this information available in Austria for EOI purposes.
Austrian registers
42. The business register (Firmenbuch) is maintained in Austria by each local court of justice. All businesses, whatever their legal form and activities, must be registered (s. 2 Austrian Commercial Register Act; FBG). In Austria, of the 17 district courts that have been set up, 16 have a commercial registry. The district court is headed by a President, who is responsible for the administration of the Court. In a typical district court in Austria there are approximately 20 persons working in the commercial registry. 43. Although the register is managed at the local level, the Firmenbuch is operated as a central electronic database (ss.28 and 29 FBG) and there is a single register for the whole Austrian territory. This means that all entries in the register are available on a national basis. This register is open for public inspection and all information maintained can be accessed by the Austrian revenue authorities (ss.33, 34 and 35). Austrian law also provides that all documents held by registration authorities, such as deeds of incorporation, can also be accessed for EOI purposes. 44. In addition to this register, all entities and arrangements relevant for tax purposes must be registered with the revenue authorities for tax purposes (s.119 and 120 Fiscal Code) and must, in particular, disclose all facts that are of relevance for tax purposes to the tax administration. 45. Since 2005, all the documents for registration have been received automatically from notaries (where a notarial deed is required by law) and lawyers. Notarial deeds must mandatorily be submitted electronically. When drafted by a lawyer, articles of incorporation are usually submitted in a physical format. The process of registration, when all information provided is correct, takes one week and once registered, the new entry is electronically available on the records of the registry on the next business day. The Austrian authorities reported that in 89% of cases the registration could be completed without any further queries. Upon registration, each entity is given a unique identification number. The specific procedure and practices, in respect of different entities, are discussed in the relevant sections below. However, the procedure is similar in respect of all entities, be they companies, partnerships, etc.
6.
Terms of Reference to Monitor and Review Progress Towards Transparency and Exchange of Information.
Registration requirements
47. According to the Austrian Commercial Register Act (FBG), all companies must be registered in the Firmenbuch. Unless they are registered, companies cannot come into existence. This obligation also covers other entities (see other sections of this report). The FBG does not provide for a timeframe to go to the local court for registration. However while the company is not registered it cannot operate, as registration in the Firmenbuch is a prerequisite to carry on any activity. 48. Information maintained in this register includes (s.3FBG): commercial register number, corporate name, legal form, registered office, name and date of birth of the company representative(s). There are different requirements for registering shareholder details, subject to the type of company: (i)for a GmbH, the identity of all the shareholders must be disclosed to the registration authorities (s.5 of the FBG); (ii)for an AG and SE where there is only one shareholder, the identity of this shareholder must be mentioned in the Firmenbuch (s.5) but if there is more than one shareholder their details are not entered into the Firmenbuch; (iii)for a Genossenschaft there is no requirement to disclose the identity of the members. 49. In addition, the GmbH law specifically states that the identity and date of birth of all shareholders must be disclosed to the Firmenbuch (s.11 GmbH Act) and that all transfers of shares must be disclosed without delay to the local court of justice (s.26(1)). All such transfers must also be effected by notarial deed (s.76 GmbH Act). 50. All entries in the Firmenbuch are published in the Official Gazette of the Wiener Zeitung (s.10 Entrepreneurial Code). This publication contains the full text of the entry in the register. 51. Pursuant to section30 of the Entrepreneurial Code, any change to the corporate name or the companys owners and any change of the registered office must be reported to the registration authorities. Amendments to the registered facts must also be immediately and without delay filed with the court (s.34 of the same code and s.10FBG) and the local court amends the entry in the Firmenbuch accordingly. This means that the identity of all GmbHs shareholders is continuously kept updated in this register 52. All companies are obliged to keep records for seven years (s.212 of the Entrepreneurial Code). In the event of liquidation, all AGs books and papers must be deposited in a safe place, accessible by the court, for a period of seven years after the company has been liquidated. Any shareholder or creditor is allowed to inspect these books and papers upon application by the court (s.214 Austrian Stock Corporation Act). The same rules apply for GmbH (s. 93 of the Limited Liability Company Act) and Genossenschaften (s.51 Co-operatives Act).
number under which the legal entity is registered (included, when such company is registered abroad); and number of shares held. 58. If registered shares are transferred to another party, cancellation and new registration in the share register will take place upon notification and evidence. 59. Genossenschaften are subject to the same requirement (s. 14 Co-operatives Act) and must maintain a register indicating for all co-operative members, their full names, marital status, date of joining and leaving and number of shares held. This register is open for inspection. 60. Austria has reported that the responsibility for ensuring that companies carry out the obligation upon them to maintain this information lies with the management (Vorstand) of the stock company who is responsible for maintaining in a proper manner this register. This is one of the duties of the management in order to organise and run the company and the management is primarily responsible to the supervisory board that is charged with the responsibility to supervise how the company is run. The system as it exists is adequate as any loss or damage that may be caused by not maintaining a share register will expose the management to a liability. In practice, from the assessment performed, it appears that the holders of nominal shares become shareholders and are entitled to exercise their rights as shareholders only after registration. Since the general meeting has to be convened once a year, the management will not expose itself to the risk of not properly maintaining the share register. Its failure to do so would make it difficult to pass legally effective resolutions at such general meetings. Such general meetings are attended and supervised by a public notary. Practical experience has shown that the mechanism works well and ensures that the companies maintain this information in accordance with their obligations.
Tax requirements
61. must: Pursuant to sections 119 and 120 of the Fiscal Code (BAO), taxpayers disclose circumstances which are relevant to the existence and the scope of any tax liability (s.119 (1)). The disclosure should in particular be achieved by way of tax returns, registrations, notifications and provision of other information (s.119(2)); and notify to their tax offices all circumstances which justify, change or end their personal tax obligations in respect of income tax, corporate tax, VAT and taxes on capital (s.120).
information. The company has one month to provide these details to the tax authorities. Failure to provide this information can result in the imposition of a one-time penalty of EUR300. The tax authorities reported that the level of compliance by companies in respect of the information sought by them in this regard, is very high and that its practical experience has shown that penalties are rarely levied 67. Before registration for tax purposes, the tax authorities carry out on-site visits in the case of all newly founded companies, to check the correctness of the details filed by the company. Once registered, the company is assigned a Tax Identification Number (TIN). A further unique number is also assigned for VAT purposes. This process ensures that there is a double check of the details filed by the company (through its reply to the notice and the on-site visit), even after the checks that are carried out by the district court authorities. Austria has reported that in 2011 a total of 13178 on-site visits were conducted by the tax authorities on all legal forms of companies (13012 in 2010). 68. Tax returns, and VAT returns, must be filed by companies electronically. If the company is for some reason unable to file its return by the due date, it has to seek an extension from the tax authorities. In case the extension is not granted and yet the return is filed beyond the due date, a penalty of EUR300 may be levied. Penalties could be on-going in nature, in the sense that they are levied for the period that the breach continues, but the total penalty levied cannot exceed EUR5000. In case the company fails to file its tax return, the tax authorities can resort to the estimation of income in order to determine the companys liability to tax. Besides the estimate itself, an additional tax at the rate of 10% is levied in such cases as also in cases of late filing of tax returns. Austria has reported that in 2010, the penalty levy was resorted to in 12247 cases (12751 in 2009 and 13355 in 2008) and estimation was made in 62634 cases (69416 in 2009 and 70237 in 2008) (these figures cover all taxpayers, companies and individuals included). 69. The audit of companies is usually done on the basis of a risk assessment, which depends on the type of business carried out and other factors. Audits could be desk audits or could call for on-site visits. On-site visits are carried out when there is a need to check the correctness of some claims made or contents of documents. During the course of an audit, the audit teams can ask for all relevant documents and auditors are empowered to take copies of these documents. This covers accounting records as well as documents dealing with ownership information such as deed of incorporations, articles of associations or share registers. 70. Taxpayers are obliged to provide documents to the tax authorities for the past seven years and for the past ten years in cases involving tax fraud. Failure to provide these relevant documents to the tax authorities can invite
71. The Austrian tax authorities have advised that the level of payment compliance of taxpayers is very high, as at November 2012, as much as 97% of the tax collections are paid voluntarily. Austria has reported that approximately 81% of the taxes assessed after audit (should they be desk or on-site audits) are paid on time. As for the compliance of the taxpayers filing returns, Austria has reported that in 2010, 1747 353 taxpayers filed tax returns after the tax authorities initiated the process of filing of returns (1740 396 in 2009 and 1747353 in 2008) and that in addition another 95490 returns were filed voluntarily by the tax payers without the need for tax authorities to initiate the process the filing of returns, in 2010 (108938 in 2009 and 115854 in 2008). In 2010, in 268948 cases tax returns were filed after action taken by the tax authorities (267604 in 2009 and 284488 in 2008). This action includes automatic reminders, manual reminders and penalty reminders (see above for the number of sanctions applied).
72. In summary, the high level of compliance of Austrian taxpayers coupled with strict registration processes ensures that information necessary to assess the tax situation of taxpayers will be available either directly with the tax authorities or in the books and documents that have to be maintained by taxpayers themselves.
Foreign companies
76. When a limited liability company or a joint stock company with its registered office abroad maintains a branch in Austria, it must be registered in the Firmenbuch (s.12 Entrepreneurial Code, s.107 Limited liability Company Act). When such company does not have its seat of effective management in an EU Member State or in a State party to the Agreement on the European Economic Area, this company must appoint at least one person resident in Austria responsible to represent the company in Austria. 77. In such case, the applicant must provide, for registration, a copy of the companys article of association and, if such articles are not written in German, a certified translation of these articles (s. 107 Limited Liability Company Act). However, there is no requirement to provide any details of shareholders as there is for domestic companies. 78. When a company registered abroad has its seat of effective management in Austria: when the company is registered in another EU country, this company must be registered as a branch in the Firmenbuch. In such cases the information to be provided upon registration is the same as described above;
79. Finally, foreign companies must also disclose all facts and circumstances that are relevant for tax purposes (ss.119 and 120 BAO). However, for tax purposes these companies are not always considered as partnerships under civil law. If they are comparable to companies according to Austrian law they are treated as companies for Austrian tax purposes. According to the Corporation Tax Act (s. 1), companies, even those incorporated abroad, having their place of effective management in Austria are taxable on an unlimited basis. To this extent, they must register with revenue authorities and provide the same level of information as similar Austrian domestic companies have to provide, in particular all facts that are relevant for tax purposes. For companies, there is however no obligation to provide detailed ownership information as it has no direct effect on the tax liability of companies in Austria (in the situation where such foreign companies would be registered for tax purposes as partnerships such information would be available due to the filing obligations concerning partnerships). Branches of foreign companies also have to be registered with revenue authorities even if their tax liability is limited to Austrian source income. 80. Most foreign companies operate through subsidiaries which are covered by the provisions relating to domestic companies. This is as a consequence of the legal framework as described above which results in the number of foreign companies that operate through branches being low. The district court authorities do not however, maintain any statistics on the number of such foreign companies operating in Austria. Therefore, it has not been possible to verify the views of the Austrian authorities. However, as detailed below, the
7. GesbR cannot be registered as GesbR in the Firmenbuch in Austria. Foreign companies must then chose one of the legal form that can be registered in the Firmenbuch. This can be the form of a joint stock company, limited liability company, co-operative, limited partnership or general partnership.
Austrian authorities have been able to collect information relating to branches of foreign companies. 81. The procedure for foreign companies to register with the Firmenbuch is no different from that for domestic companies. As regards the requirements of registering with the tax authorities, they are the same as for domestic companies. Hence, the position regarding availability of ownership information in relation to foreign companies is no different from that for companies incorporated in Austria. 82. In the last three years, Austria has received 13 EOI requests concerning ownership of foreign companies, of which they were able to answer 12. In the one case that information could not be provided, Austria states that the matter is pending at the local tax office and is being actively followed up Austria has reported that it has sent a reminder to the local tax office concerned but the information has not yet been received, given the complexity of the case. The requesting jurisdiction has been informed of the situation. Peers have not reported any specific issue in relation to the provision of ownership information pertaining to foreign companies. This indicates that in practice Austria is able to obtain ownership information about foreign companies to a reasonable level.
8.
This includes when creating a legal person, acting as director of a legal person, or providing a registered office or a business office to legal persons.
85. Pursuant to the same article, the identification and verification of the identity of the customer must be ascertained by the personal presentation of an official photo identification document issued by a government authority. Where the customer is a company or other entity, the identity must be ascertained on the basis of a meaningful supporting document which is available under the usual legal standards of the country in which the legal person is incorporated. In addition, the identity of the natural person competent to represent this legal entity is ascertained by the presentation of an official photo identification document. 86. In addition, persons and entities covered by the CDD requirements must identify all beneficial owners (s.40BWG, s.8d RAO, s.36d NO, s.98b WTBG, s.79b BibuG, s.365o GewO). Beneficial owner is defined in each applicable law according to the definition included in the Third EU Antimoney Laundering Directive. 9 Such entities must store CDD and accounting
9. Directive 2005/60/EC of the European Parliament and of the Council of 26October 2005 on the Prevention of the use of the Financial System for the Purpose of Money Laundering and Terrorist Financing. With respect to companies that Directive defines beneficial owner (s.6) to mean the natural person(s) who ultimately owns or controls the customer and/or the natural person on whose behalf a transaction or activity is being conducted. It goes on to indicate that the beneficial owner shall at least include: (a)in the case of corporate entities: (i)the natural person(s) who ultimately owns or controls a legal entity through direct or indirect ownership or control over a sufficient percentage of the shares or voting rights in that legal entity, including through bearer share holdings, other than a company listed on a regulated market that is subject to disclosure requirements consistent with Community legislation or subject to equivalent international standards; a percentage of 25% plus one share shall be deemed sufficient to meet
material for no less than five years after the relationship has ceased and if the entity ceased activity or is dissolved, the last acting management must ensure that this information is stored in accordance with the terms of the Law. 87. To ensure the implementation of this legislation, public authorities, and in particular the Financial Market Authority (FMA) are in charge of monitoring professionals subject to CDD requirements. See section A.1.6 below with respect to sanctions for non-compliance with these obligations. 88. Looking at the practical implementation of these laws, it consists of two parts. One is the due diligence that is exercised by the notaries, advocates and other similar professionals and the second is the supervision by the FMA on banking and financial entities. The issues connected to the supervision by the FMA on banking and financial entities are discussed under section A.3 of this report. 89. With respect to the due diligence that is to be exercised by professionals, these rules are found in the laws that govern them, such as the Notarial Code and in related guidance. In the case of notaries, when they handle the incorporation of companies, they verify in practice the identity of all the parties involved, including beneficial owners. This is because the Notarial Code requires (i)all parties to a deed to be identified and (ii)notaries to identify their clients in all circumstances. As notaries are in addition personally responsible for any mistake made in deeds in which they have been involved, they comply in practice with these requirements. This verification is based on an official identification such as a passport. Copies of these identity documents are kept in the file that is maintained by the notary for each company for which (s)he is involved in the incorporation. In case a foreign company is a shareholder or a member, the notary seeks the business register of the foreign company. 90. The notarial deed that is drawn up in the course of the incorporation of a company contains the articles of association of the company. In the case of a foreign company being a member, details of the foreign company are also attached. In case of individuals, their identification details are obtained. All this information is retained by the notary. Information that is collected by the notary as part of the AML supervision is shared with the FIU when it is so required by the AML laws. Such situations may arise when the notary feels that there might be a suspicious activity or transaction relating to money laundering or the financing of terrorism. 91. The system of inspection of notaries that has been put in place is such that each notarial office is inspected every three to five years. These
his criterion; (ii) the natural person(s) who otherwise exercises control over the management of a legal entity..
95. The Bar Association has in the last three years discovered three cases, in the course of their inspections, where breach of AML/CFT provisions has occurred. Disciplinary proceedings have been initiated in all cases. All Austrian attorneys have escrow accounts and these accounts are also reviewed in the context of inspections carried out by regional bar associations. The register of escrows is maintained in electronic format. All clients must be informed of their registration in the register of escrows. In its EOI experience, Austria has reported that it has asked lawyers and notaries to provide information and it has never faced a problem in this regard. 96. Another body that operates as supervisors for AML/CFT purposes is the Chamber of Chartered Public Accountants and Tax Consultants. This set of professionals provides services that include, tax related consultancy, counselling, book keeping, payroll services and representation before tax authorities. As for their role in setting up legal persons or arrangements, this is limited to providing financial data. 97. In their role as supervisory authorities for AML/CFT purposes, they have developed some special guidance and some special questionnaires for their clients. This covers identification of the persons involved and some risk assessment for AML/CFT purposes. The identification documents that they collect include personal identification, company registers, details of beneficial ownership etc. These details have to be maintained by the accountants for seven years. 98. On the issue of internal controls, the Chamber for Chartered Accountants does not have the powers to conduct any inspections on its members. For this task, there is another Quality Assurance Authority for auditors. This authority inspects all auditors for listed companies once in three years and other auditors are inspected once in six years. Any shortcoming needs to be attended to by the inspected auditor in six months to a year depending on the facts of the case. The Quality Assurance Authority can also report the matter to the Chamber who may take disciplinary action against the auditor. Practical experience has shown that CDD obligations are satisfactorily fulfilled by the Chartered Accountants in Austria. Austria has reported that it is contemplating legal amendments that will allow the Chamber of Chartered Accountants to also carry out inspection of its members. Austria has reported that in the course of answering EOI requests it has asked Chartered Accountants to provide information and it has never faced any difficulty. The details of the inspection carried out by the Quality Assurance Authority are tabulated below.
99. It is noticed that there is a significant difference between the number of inspections in 2009 and 2010. Austria has explained that prior to 1January 2011 auditors had to participate in a quality inspection successfully. However, on 1January 2011 a transitional provision was phased out so that all auditors had to obtain a confirmation on a successful participation in a quality inspection in order to be allowed to exercise their profession. Therefore the number of quality inspections rose considerably between 2009 and 2010 so that all auditors fulfilling the prerequisites could obtain the above-mentioned confirmation. 100. One or more professionals subject to AML/CFT requirements are always involved in the creation of companies and foundations and may also be involved in drafting deeds relating to other entities or arrangements (see below regarding partnerships, Treuhand and trusts). When these persons are involved in these processes, it means that the parties to the deeds or contract will always be identified and this identity further verified by the requirement for each person to provide corroboratory evidence of their identity. In practice, this means that when these deeds or contracts are submitted to government authorities, ownership information contained in these documents has already been verified, giving broad assurance that it is accurate.
Nominees
101. Nominee ownership is regulated by the rules on the fight against anti-money laundering. According to section365m of the GewO, both natural and legal entities and registered general partnerships, particularly corporate consultants acting in the role of a nominee shareholder for another person, are subject to AML/CFT requirements. They must, as a consequence, perform CDD, identifying the person for whose benefit the shares are held. Thus, when someone is acting as a nominee, it is possible to obtain the identity of the beneficial owners of the shares. 102. Nominee ownership is regulated by the AML/CFT legal framework in Austria and therefore the practices described above also apply in respect of nominee ownership. During the on-site visit professionals confirmed the extremely narrow scope of nominee ownership. They reported that to the
best of their knowledge, non-professional nominees are not likely to exist in Austria and, more broadly, no issues were reported with regard to nominee ownership information. Austrias tax authorities also advised that they have never received any incoming request dealing with nominees but are ready to use their information gathering powers to collect such information if so requested by a treaty partner. The ability of Austrias tax authorities to exchange information relating to nominee ownership should be monitored by Austria on an on-going basis.
Conclusion
103. Considering legal obligations imposed by the various legislation in force in Austria, FBG, Entrepreneurial Code, laws regulating each type of company, and tax requirements: an AG is required to provide the identity of its shareholder to the registration authorities where such a company has a single shareholder. In all cases, AGs must maintain up-to-date share registers in which the identity of all holders of registered shares must be indicated. In addition, the identity of any shareholder owning more than 5% of an AG listed on a stock exchange must be disclosed to the company, to the Financial Market Authority, and to the stock exchange company; Genossenschaften are required to maintain up-to-date registers of their members; the identities of all GmbH shareholders must be disclosed to the registration authorities upon registration and updates must be provided; branches of foreign companies are also required to be registered in the Firmenbuch. Foreign companies having their registered seat in an European Union country and their place of effective management in Austria must be registered in the Firmenbuch as branches. In other cases, when these companies have their seat of effective management in Austria, they are registered in the Firmenbuch when their annual turnover is beyond EUR700000; and all these entities are subject to further tax requirements. They must be registered with the revenue authorities. Any changes of relevance for taxation must also be notified to revenue authorities within one month of the event. There is however no clear requirement to provide the identity of shareholders or members in companies upon registration.
104. The practical application of the legal requirements is effective. The practical standards enforced by the registration authorities, service providers and the tax authorities are such that ownership and identity information in
106. In 2011 Austria amended its Company Law10 to address the fact that no ownership information on holders of bearer shares was available in Austria. The law provides that listed companies can still issue bearer shares for the purpose of being listed. However, no individual bearer shares will be issued and all these shares will be certified by global certificate(s). A publicly listed stock corporation must deposit the global certificate(s) with a securities custodial bank. The global certificate will not contain the names of the shareholders but will contain details of the bank where the certificates are deposited. The bank where the share certificates are deposited will have to
10. Gesellschaftsrechtsnderungsgesetz adopted on 7July and July 21st by the two chambers of the national assembly and entered into force on August 1st 2011.
keep the ownership details in respect of the bearer shares as they are required to do so under the AML/CFT law (see section A.3 of this report). Thus, for listed companies, identity details in relation to the owner of all shares will be known from 1January 2014. 107. In contrast, for unlisted companies, the issuance of bearer shares is prohibited from 1January 2014. From this date, companies are allowed to issue only nominal shares (registered shares). All shares that qualify as registered shares must be entered in the companys share register. This share register must contain information that includes (i)the name, date of birth and the relevant address of the shareholder, (ii)number of shares or share numbers, (iii)for companies that are not publicly listed, a bank account into which payments of dividends must be made and (iv)if the shares belong to a person other than the one listed in the share register, then all the above information, in respect of that other person. In addition, the law states that after 1January 2014, bearer shares cannot be traded or sold without complying with the new registration requirements. If they do not, the shares shall be deemed to be registered shares. In the meantime, from the entry into force of the law (1August 2011) until 31December 2013, bearer shares can still be issued. 108. In addition, while the conversion of bearer shares must be completed by 1January 2014 and the holders of bearer shares whose shares are not converted by this date will lose their rights in the company from that date, the holders will be entitled to recover them without any time limit upon disclosure of their identity to the company. The system implemented by Austria does not provide any incentive for shareholders to convert their bearer shares into nominal shares, until such time as they have a need to obtain their rights in the company. In the meantime there is nothing to prevent them from transferring the shares to another person (until 31December 2013) who may then claim them as their own without identifying the former owner. Austria has stated that after 1January 2014, the owners of bearer shares cannot exercise their rights. However they remain owners of their shares in the company and remain entitled to be registered as shareholders later on. Austria is of the view that in practice bearer share certificates will still be helpful in proving the ownership of the shares, but if any doubts arise, the shareholder will need other means to prove their rights, e.g.presenting the relevant contracts to show how they became owner of the shares. In Austrias opinion the incentives for bearer shareholders to convert their shares are very strong, because shareholders who do not convert their shares before the end of 2013 will have to prove their entitlement by other more complicated means than by simply presenting their bearer shares who will by then have lost their validity to represent the proportion of the shares owned. 109. Although Austria has made some efforts in seeking to ensure the availability of ownership information relating to bearer shares, the review
Partnerships (ToRA.1.3)
112. There are three main forms of partnerships that can be set up in Austria: Offene Gesellschaft OG general partnership (ss.105 to 188 Entre preneurial Code (UGB)) An OG is a partnership formed by at least two partners who are jointly and severally liable for all its commitments. No minimum capital is required to form an OG. The
partnership may be formed by notarial or private deed. There were 18000OGs registered in the Firmenbuch on 31December 2012; Kommandit Gesellschaft KG limited partnership (ss.105 to 188 UGB). A KG is a partnership formed by one or several partners who are jointly and severally liable (the active or general partners), and one or more limited partners (the dormant partners) whose liability is limited to the level of their contribution. Limited partners cannot engage in management activity, even through a power of attorney. No minimum capital is required to form such a partnership and the articles of incorporation can be under a notarised or private format. There were 42700 KGs incorporated in Austria at the end of 2012. Gesellschaft brgerlichen Rechts GesbR (Civil Law Partnership), an association of at least two natural persons who wish to combine their knowledge or property in a particular field. This partnership under civil law is not a legal entity and each partner is jointly and individually liable to the debts of the partnership. A partnership under civil law is established by written, oral, or implied agreement between the partners, who may act in their own name or on behalf of the partnership. While not having legal status, a GesbR is a relevant entity for tax purposes in Austria. The calculation of the partnership profit is made at the partnership level and further split between the partners. There are 11000 GesbR registered in Austria.
113. Austrian legislation also allows for the creation of a stille Gesellschaft (silent partnership). Under a stille Gesellschaft, a person makes an equity contribution into another persons business. This arrangement can be characterised as a contract, and like a contract, its existence is not disclosed to the public. These partnerships do not have any legal capacity and personality. Therefore, they cannot act as entities separated from their partners and cannot hold real estate or assets. They have no income or credits for tax purposes, do not carry on business and cannot be compared to a limited partnership. Therefore these arrangements are not under the scope of the Terms of Reference.
Registration requirements
114. According to the Austrian Commercial Register Act (FBG) legal entities must be registered in the Firmenbuch. This obligation also covers OGs and KGs (s.2) and unless they are registered, these two types of partnerships cannot come into existence. The FBG does not provide for a timeframe to go to the local court for registration. However, while the partnership is not registered it cannot operate as the registration in the Firmenbuch is a prerequisite to carry on any activity.
Tax requirements
121. must: Pursuant to sections 119 and 120 of the Fiscal Code (BAO), taxpayers disclose circumstances which are relevant to the existence and the scope of a tax liability (s.119(1)). The disclosure should in particular be achieved by tax returns, registrations, notifications and provision of other information (s.119(2)); and notify to their tax offices information concerning all circumstances which justify, change or end their personal tax obligations in respect of income tax, corporate tax, VAT and any other taxes.
122. For registration by the revenue authorities, all partnerships must file a Verf 16 form. This obligation covers OG, KG and GesbR. As indicated on this registration form, a copy of the articles of association/partnership statutes must be provided to the revenue authorities11. In addition, the identity of any partners must be disclosed. The identification information includes the name of the investor, his/her date of birth, address and the percentage of capital held. 123. The application for registration or the notification of any change must be filed within one month of the event requiring the notification of the tax office, as mentioned on the form to be filed (form Verf 60 in that case). 124. In addition, while being transparent entities for tax purposes, pursuant to sections 133 and 134 of the BAO, partnerships (OG, KG or GesbR) must submit an annual declaration of income (form E6) by the end of April following the assessment period including details on the partners identity. This information is of high importance to ensure the taxation of the partnership profits within the hands of each partners according to the percentage of capital held. 125. As all partnerships carrying on business in Austria or receiving income from Austrian sources are relevant entities for tax purposes, this means that these partnerships, whether incorporated in Austria or in a foreign jurisdiction, are subject to all tax requirements set out in s.119(1) and 119(2) of the BAO. 126. In the case of partnerships, the registration procedures in respect of tax authorities are the same as those for companies. As in the case of companies, the tax authorities can carry out on-site inspections of partnerships. While registering with the tax authorities, partnerships will have to provide details of the respective contributions of the partners. In practice, this is done very consistently. In 2011, the tax authorities have carried out 624 inspections of limited partnerships (559 for 2010). This was just 4.74% of the 13178 onsite inspections carried out in 2011 (4.3% of the 13012 for 2010). 127. As for the records that are maintained by the tax authorities in respect of partnerships, a common database is maintained in respect of all entities, including partnerships. The correctness of the data that is maintained by tax authorities will be checked when an audit is taken up. The penalty for not filing the Verf 16 and/or the Verf 60 form is up to EUR5000. It could also lead to the estimation of income. Late filing of these forms will attract an additional tax of 10%. The details that are contained in the Verf 16 and Verf
11. Where no written articles of association exist (for instance in the case of a GesbR), the main content of the oral agreement must also be disclosed pursuant to ss.119 and 120 of the BAO.
Conclusion
130. Information that OG and KG in Austria must provide upon registration includes the identity of their partners and this must be updated in the Firmenbuch. OG, KG but also GesbR are also relevant entities for tax purposes. Thus, revenue authorities receive information on partners in a partnership on an annual basis, through the compulsory declarations that partnerships must file. Any change in the facts that are of significance for tax purposes must also be disclosed within one month of the event to revenue authorities. This includes partnership ownership information as partnership profits are taxed within the hands of the partners. These different avenues ensure partnerships ownership information is available in all circumstances. 131. The practical application of the legal requirements is effective. The practical standards that are enforced by registration and tax authorities are such that ownership and identity information in respect of partnerships is available and easily retrievable in Austria. As mentioned above the identity
12. For the definition of beneficial owner see footnote 9.
and ownership information is available with the court authorities and the service providers as well as the tax authorities. Peer inputs received also indicate that Austria was able to exchange information when it was sought by the treaty partner. During the three year period under review, Austria received one request concerning ownership information on partnerships, which it was able to answer to the satisfaction of its treaty partner. Austria has received 13 requests in 2011 concerning other aspects of partnerships like accounting information (12 in 2010 and 16 in 2009).
Registration requirements
134. As regards the availability of information regarding settlors, trustees and beneficiaries of trusts, Austrian legislation does not require registration or disclosure of this information to government authorities because Austrian legislation does not recognise trusts. Further, Austrian legislation does not contain
13. www.hcch.net/index_en.php?act=conventions.text&cid=59, accessed 2May 2011.
There is no information on Treuhand available in the Firmenbuch. As has been mentioned above, in the case of Treuhand, the registration is, in some instances carried out by lawyers and/or notaries. Where the registration is carried out by lawyers and notaries, the service provider will keep the details of the contracting parties. The notary or lawyer will keep all details of the client and the details of the property that has been registered.
Tax requirements
136. Section24 of the BAO provides that under a Treuhand relationship assets are to be attributed to the Treugeber. Consequently, if a person states that assets are held in a fiduciary relationship, then this person has to provide evidence of the existence of such a relationship in order to avoid the assets or any income derived therefrom to be attributed to him or her for tax purposes. The same rule applies similarly to trusts and settlors. 137. As economic owner of the assets (the legal owner being the Treuhnder), the Treugeber must report to the tax authorities all earnings deriving from the Treuhand. In particular, a Treugeber is obliged to report to the tax authorities about all facts relevant for his taxation (ss.119 and 120 of the BAO) and to file a tax return (s.134). Similarly, the same rules apply to the settlor of a trust. 138. Trustees or Treuhnder resident in Austria may also be taxpayers subject to the provisions of Austrian tax law, and in particular sections 119 and 120 of the BAO stating that any persons must disclose to the revenue authorities facts and circumstances that are significant for taxation and all
information needed to determine the tax liability of these persons can be requested by the revenue authorities (see in particular sections 143 and 161 to 165 of the BAO further described in section B.1 of this report). Further, these powers can also be used to answer incoming requests for information. This means that a trustee or a Treuhnder resident in Austria may, if requested by the Austrian tax authorities, be in a position to provide all information on settlors and beneficiaries of trusts and Treuhand administered in Austria. 139. As far as the tax authorities are concerned the procedure that is followed here involves the reporting of the position of the Treuhnder as the legal owner of the assets to the tax authorities. The issue that is of importance to the tax authority here is the holding of the assets in fiduciary capacity. The tax authorities in Austria seek evidence of that from the Treuhnder. That evidence is also cross-verified. This cross-verification may be carried out by an on-site visit or with the service provider, where the registration has been carried out by one. The tax authorities check for details of the beneficial owner in the case of the Treuhand. If the Treuhnder is unable to satisfy the tax authorities that the assets are held in a fiduciary capacity, those assets and income derived there from will be attributed to him or her for tax purposes. The details of the assets of the Treuhand are retained by the tax authorities. The same rule applies similarly to trusts and settlors. 140. The Treuhnder and the Treugeber file separate tax returns. The penalties for not filing a tax return or late filing, is the same as for companies and partnerships.
Conclusion
144. While there are no general registration requirements for trusts to be registered, a partial obligation exists for Treuhand where it is administered by a lawyer or civil law notary. Further, the obligations set out in the BAO require anyone to disclose all facts and circumstances that are relevant for taxation in Austria and this may include information on settlors and beneficiaries of trusts and Treuhand. Finally, under the AML/CFT requirements, trust service providers are obliged to maintain ownership and identity information regarding their clients and those beneficial owners who have at least a 25% interest in a trust or foundation.14 145. The practical application of the above legal requirements has not occurred frequently in Austria as trust arrangements are not common. Austria has not received any EOI requests concerning trusts or trust-like arrangements during the period under review.
Foundations (ToRA.1.5)
146. Austrian law recognises the concept of foundations. A foundation (Stiftung) is an organisation intended to promote on a long-term (indefinite) basis a particular purpose (designated by the founder) through assets dedicated to that purpose. Austrian law allows for the creation of:
14. Directive 2005/60/EC of the European Parliament and of the Council of 26October 2005 on the Prevention of the use of the Financial System for the Purpose of Money Laundering and Terrorist Financing. With respect to legal entities such as foundations or legal arrangements such as trusts, that Directive, as implemented in Austria defines beneficial owner to mean (i)where the future beneficiaries have already been determined, the natural person(s) who are beneficiary of 25% or more of the property of a legal entity; (ii)where the individual that benefit from the legal entity have yet to be determined, the class of persons in whose main interest the entity is set up or operates; (iii) the natural person or persons who exercise control over 25 % or more of the property of a legal entity.
public benefit foundations under the Federal Foundations and Funds Act (BStFG). These foundations can only be set up for charitable purposes. They may carry on a minor commercial activity to the extent that this activity supports the main purpose of the foundation; and private foundations under the Private Foundations Act (PSG). In such foundations, the founder dedicates property for private purposes devoid of any self-interest. There is a legal prohibition which prevents foundations from carrying on any commercial activity.
149. Once the deed of foundation is established, it must be provided by the founder to the Foundations Authority, which decides whether a permission to establish the foundation is granted or not. This permission grants legal personality to the public foundation and the establishment of the foundation is published in the Official Gazette of the Wiener Zeitung (s.6BStFG). Further, the Foundation Authority appoints the foundation protector. 150. In the six months following its appointment, the foundation protector must submit the foundation Charter where the following information must, amongst other things, be mentioned (s.10BStFG ): the name and the seat of the foundation;
151. The foundation Charter must be approved by the Foundations Authority and the foundation cannot commence its activities until the Charter has been approved (s.10BStFG). 152. All public foundations are registered in the single foundation register maintained by the Ministry of Interior (s.40BStFG ). The register contains the name, seat and address of the foundation, details on the purpose of the foundation and the group of beneficiaries, and the names and addresses of the representatives and executives of the foundation. This register is open to any person for inspection (s.40). Information in this register is kept permanently (s.40(5)). 153. There are 220 public foundations registered in Austria. These public foundations are supervised by the Foundations Authority. The organisation of this Authority is such that it has a head office in Vienna and there are regional offices in each of the nine Lnder of Austria. There is only one person working in the head office in Vienna and five to six people in each of the regional offices. The regional offices are under the supervisory control of the head office. As regards the supervisory role of the Authority vis-a-vis the foundations, this consists of supervising their work and addressing the legal questions when deficiencies are detected. If the matter is not resolved by the Authority, it will be settled by the Courts. 154. While all public foundations are required to register themselves with the jurisdictional regional office, there is no legal provision that would ensure that all foundations actually register themselves. There are no penalties for not registering. The system relies on the belief that foundations will automatically register themselves, if they want the status of having a charitable purpose and the resultant tax benefits. 155. Public foundations, according to the BStFG are corporate entities and therefore in principle subject to corporate tax. However, they are exempt from unlimited corporate tax when they are dedicated to a charitable or benevolent purpose. Then public foundations can merely become subject to unlimited corporate tax in case and to the extent that they conduct an economic activity. Moreover capital income of public foundations is always subject to taxation. Public foundations are regarded as being dedicated to a charitable or benevolent purpose when they are (i)set up in accordance with the requirements of the BStFG which requires, inter alia, a dedication to charitable or benevolent purposes according to the deed of foundation and the statutes and (ii)when
their administration in fact is only and directly dedicated to the fulfilment of these purposes. This means that a public foundation that in fact does not only and directly pursue its charitable or benevolent purpose can become subject to unlimited corporate tax. Moreover any changes of the statutes that are relevant for a granted tax exemption have to be reported to the competent tax office within one month. 156. When a foundation approaches the regional office for registration, the regional office is required to check the identities of all persons involved, including the beneficiaries. The foundation needs to provide the details of the assets. The regional office will check on the details only if they find some required information missing. The regional office then sends a report to the head office. There is no institutionalised system by which the head office will check the information that has been sent by the regional office. As per the data that has been provided by Austria, 16 inspections have been carried out by the regional offices in 2012 (six in 2010 and 13 in 2011). Enquiries into whether the foundation is carrying out its avowed objective and not carrying out any commercial activities is a matter that is left to the tax authorities. 157. Austria has further reported that the BStFG does not include specific requirements as to how the foundation authorities must fulfil their super visory duty (the discussion below naturally also applies analogously to funds and fund authorities). Under sec. 14(4) BStFG, the officers of the foundation authority must be allowed to inspect the financial management and administration of foundation assets. Austria has claimed that the Federal Ministry of Internal Affairs exercises great care in ensuring that the entries in the Foundation and Fund Register satisfy applicable legal requirements. It states that in 2011 a number of foundations were requested to discharge directors who were inadmissible under the BStFG. 158. The offices of the Foundation Authority maintain records in electronic and physical format for an indefinite period.
Conclusion
161. The Austrian legal and regulatory framework ensures the availability of ownership information on public foundations: (i)the name of the founder is available in the deed of foundation; and (ii)designation of the foundations administrative and representative bodies and details on the class of beneficiaries must be disclosed in the foundations Charter which must be provided to the Foundations Authority. Private foundations
163. Beneficiaries are the parties designated as such in the foundation deed (s.5 PSG). When the foundation deed does not expressly stipulate the name of the beneficiaries, it may be that the group of beneficiaries is detailed in the deed while the identity of the beneficiaries themselves is mentioned in an appendix, alternatively there may be no details of the foundations beneficiaries in the deed. 164. Where the foundation benefits to a class of persons, there is no obligation to designate the name of each beneficiary, and this group of beneficiaries can directly be known from the purpose followed by the foundation. 165. Private foundations must be registered by the local court where they have their registered office (s.13PSG and s.2FBG). The information maintained in the Firmenbuch includes (s.3FBG): commercial register number, foundation name, legal form, registered office, name and date of birth of the foundation representative(s). In addition, and pursuant to section13(3) of the PSG, information on the purpose of the foundation, the date of the deed and of any amendments to that deed and the name and date of birth of the members of the supervisory board must be provided.
166. Any amendment to the information entered in the Firmenbuch must be updated without delay (s.10FBG). 167. As for the practical application of these legal requirements, the procedure that is applicable for other entities that need to register with the district court registry applies in the case of private foundations also.
Tax requirements
168. Pursuant to sections 119 and 120 of the Fiscal Code (BAO): taxpayers must disclose circumstances which are of relevance to the existence and the scope of any tax liability (s.119(1)). The disclosure should in particular be achieved by tax returns, registrations, notifications and provision of other information (s.119(2)); and taxpayers must notify to their tax offices information concerning all circumstances which justify, change or end their personal tax obligation in respect of income tax, corporate tax, VAT and taxes on capital.
169. 3192 Private foundations were registered for tax purposes by the end of year 2012. For registration by the revenue authorities, all foundations must file a Verf 15b form. As indicated on this registration form, a copy of the deed of foundation must be provided to the revenue authorities. As a result of the requirements of the Corporate Income Tax Act 2010, foundations should disclose any appendix to the foundation deed to the tax authorities, together with a copy of any Treuhand used by the founder. If these documents are altered, the changes must be notified to the tax authority. In addition, since April 2011 the identity of any beneficiaries not named in the deed must be disclosed to the revenue authorities as provided for in section5 of the PSG. For foundations set up before 1April 2011, the name of all such beneficiaries must be disclosed to the revenue authorities on or before 30June 2011. 170. The application for registration or the notification of any change to registered information must be file within one month of the event requiring the notification, as detailed on the form to be filed. 171. As far as the practical application of the registration requirements of private foundations with the tax authorities is concerned, the same procedure applies as in the case of companies. However, there are five specific tax offices in Austria that have been given the task of registering private foundations. Austria has reported that in the year 2010, three inspections were carried out on private foundations. One of the objectives of these inspections was to check whether private foundations fulfill their obligations to maintain identity information on the beneficiaries. No problems were noticed on the issue of identification of beneficiaries. Private foundations are also subject
Conclusion
174. The Austrian legal and regulatory framework ensures the availability of ownership information for private foundations: the name of the founder, of the board of directors, and the supervisory board is indicated in the deed of foundation on a mandatory basis. The deed must be established by a civil law notary who is a professional with CDD obligations; private foundations must be registered in the Firmenbuch; and for registration by the revenue authorities, foundations must provide the foundation deed and the identities of their beneficiaries.
The system of maintenance of ownership and identity information is much stronger in the case of private foundations than for public foundations. By a combination of the requirements of the district tax authorities and the tax administration, ownership and identity information is available in respect of private foundations. Austria has not received any EOI request concerning ownership information of foundations during the three year period under review.
Tax requirements
181. All obligations deriving from the BAO are supported by sanctions to respect tax requirements, including the provision of information to the authorities. In particular section111 of the BAO states that the Fiscal Authority is authorised to compel compliance with the fiscal legal obligations by imposition of a fine not exceeding EUR5000. For late submission of tax returns, a 10% surcharge may be applied. 182. The Fiscal Offences Act also sets out a range of sanctions where tax obligations are not fulfilled: whoever intentionally reduces his taxation by violating a duty of notification, disclosure or truthfulness under the BAO is deemed guilty of tax evasion (s.33). In that case, tax evasion is punishable by a fine of up to the double of the amount of tax avoided. In addition to this fine, the court may impose a custodial sentence of up to two years; where a person fails to self-assess taxes (when required to do so), an administrative fine of half the amount of taxes to be paid may be imposed (s.49); a person who does not retain books and record as required by the BAO may be punishable by a fine of up to EUR5000 (s.51).
183. Section42 of the PSG states that whoever does not or does not fully comply with the obligation to provide the name of a private foundations beneficiaries to the revenue authorities may be punished by a fine of up to EUR20000 for each beneficiary whose identity is not disclosed. 184. In the year 2012, the Austria tax audit unit performed 16452 tax audits (19957 for 2011 and 19780 for 2010) resulting in an additional revenue of EUR1487 209872 (EUR1567 322507 for 2011 and EUR1069 675769 for 2010). Austria has reported that separate analysis of sanctions that resulted
from these audit actions is not possible. This is because the audit and penalty proceedings are recorded in two different databases. It is currently not possible to create an unambiguous link between these data.
AML/CFT legislation
186. All requirements coming from the AML/CFT framework are supported by administrative sanctions, unless the offence constitutes a crime. For example: fines up to EUR75000 or a term of imprisonment of up to six weeks for banks and financial institutions in case of non-compliance; fines up to EUR45000 and disciplinary sanctions (debarring up to one year, removal from the list of lawyers) for lawyers who do not comply with AML/CFT obligations; fines up to EUR36000 and disciplinary sanctions (suspensions up to one year, debarring from office) for non-compliance by civil law notaries; and fines up to EUR20000 for non-compliance by companies and trusts service providers, and nominees.
187. Any person involved in money laundering, when the amount involved is over EUR50000 is punishable with a term of imprisonment from one to ten years (s.165 (4) of the criminal code). 188. Austria has reported that in this regard, in the year 2012 there were 34 administrative proceedings initiated (35 in 2011 and 14 in 2010). In 2012, penalties were levied in 14 cases (7 in 2011 and 5 in 2010). The volume of pecuniary sanctions in 2012 was EUR57700 (EUR21000 in 2011 and EUR38500 in 2010)
Conclusion
189. Austrian legislation usually provides for sanctions in situations where the information required by law is not kept.
In such cases, Austria should ensure that ownership and identity information is available.
accounting books should be made chronologically should be complete and made in a correct and timely fashion. No entry may be altered in a manner which no longer permits the original content to be ascertained (paragraphs 3 and 4 of s.190). 192. The requirements set out in the UGB apply to: joint stock companies, limited liability companies and partnerships where no general partner with unlimited liability is a natural person, whatever their turnover; and any other businesses whose turnover is above EUR700000 a year.
193. Section124 of the BAO states that whoever bears an obligation under the UGB or other provisions of law to keep and retain books and records must also keep this information for tax purposes. 194. In addition, pursuant to section125 of the BAO, all agricultural, forestry and commercial businesses must keep books and records: they have a turnover exceeding EUR400000 for two successive calendar years; or their value15 exceeds EUR150000 as of 1January of any year.
195. These obligations relate to any type of entity whatever its legal form. Books and records to be kept must ensure the preparation of financial statements and the annual inventories (s.125BAO). These records must be kept in such a manner that they are capable of providing a general view of the business transactions and enable reconstruction of the individual business transactions from their origins to their execution. 196. Finally, and pursuant to section126 of the BAO, taxpayers who bear an obligation to submit tax returns must keep such records necessary for recording facts and circumstances relating to their tax liability. In particular, when such taxpayers are not required to keep books and records according to sections 124 and 125 of the BAO, they nevertheless have an obligation to record all their business receipts and disbursements and prepare their annual accounts at the end of each year for purposes of income and profit tax collection. 197. Given that tax returns must be filed by all companies and partnerships (see ss.133 and 134 BAO), together with comprehensive tables showing a clear picture of the company or partnership financialsituation (including a
15. Value should be understood as at the amount of the unitary value increased by the value of commercial tenancies as a lessee and decreased by the value of commercial leases as a lessor (at the most recent determinative amount thereof).
202. Regarding the practical implementation of the obligations that are placed upon Treuhnder and the Treugeber, these are also enforced by the tax authorities as has been described above under section A.1.4 of this report. Here also, failure to provide these accounting records or underlying documentation on the part of the taxpayer will in practice attract a penalty of up to EUR5000. 203. When the Treugeber or settlor is not resident in Austria and all assets held through the fiduciary relationship are located outside Austria, there is no record keeping requirements provided for by the Austrian tax legislation. However, any obligation under foreign provisions of law that applies to a specific Treuhand/trust in Austria under the rules of international private law will also trigger the obligation to keep accounts under Austrian tax law (Art.124 BAO). 204. Section32 of the Public Foundations and Funds Act imposes the obligation on any foundation to invest assets or funds in line with the purpose of the foundation. To this extent, evidence of the investment must be furnished to the Foundations Authority. All legal transactions relating to funds, assets and real property also need the prior approval of the supervisory authority. Paragraph 3 of section32 also states that public foundations are subject to accounting rules and must submit, pursuant to section14 of the same act, a balance sheet showing all assets and liabilities within six months after the end of the accounting period. 205. Private foundations are subject to the general accounting requirements deriving from UGB and must therefore keep books and records (s.18 Private Foundations Act). Private foundations are also taxable entities according to the BAO and are further subject to the record keeping requirements set out in this code. 206. In respect of foundations also, the same obligations will apply to these entities, in respect of answering the tax authorities, as has been discussed above. 207. Austria has reported that the number of desk audits performed in the year 2012 was 527185 (452191 in 2011 and 364326 in 2010). The additional revenue that was generated by this exercise was EUR588396 901 in 2012 (EUR438191 578 in 2011 and EUR3011 901365). Austria has reported (as mentioned earlier) that a separate figure for penalties levied is not available as the amount levied by way of penalties and that generated from these audits is in two different databases and a linkage cannot be made between them. Penalties are also levied by the district court authorities for not providing annual balance sheets on time. The district court authorities have reported that in 2012, in 21305 cases, compulsory sanctions were applied for not providing annual balance sheets in time (50621 in 2010 and 28834 in 2011).
Conclusion
208. Except in some specific situations relating to trusts and Treuhnder, the obligations in the accounting and tax legislation, ensures the availability of accounting records from which it is possible to accurately review all transactions, to assess the financial position of all entities, and to prepare financial statements. 209. Austria has reported that largely, they have not found any problems in the practices of the taxpayers maintaining accounting records. During the three year period under review, ending 31December 2011 Austria received a total of 397 requests that concerned accounting information. Of these, 148 requests were for companies, two for foundations, 40 for partnerships and 207 for individuals. The Austrian competent authority has been able to provide accounting information, whenever sought by a treaty partner. Peers have commented that they have been satisfied by responses provided by Austria although delays in the provision of information, have been highlighted in several instances. Austria has reported that of the 397 requests relating to accounting records, 391 have been answered. The remaining 6 are pending. These are pending on account of timing issues.
backed by the necessary documentation on the transactions performed and which allow for assessment of the financial position and preparation of financial statements for all relevant entities and arrangements. 214. On the practical implementation of this aspect, the tax authorities have ample powers to seek the production of underlying documentation of up to a period of seven years. The system as it exists in Austria is such that the tax authorities can seek any relevant document. The powers that tax authorities can use for seeking information to answer an EOI request are the same as are available to then in a domestic tax case. Failure to provide documents would attract penalty of up to EUR5000. As mentioned earlier, there could be an on-going penalty till the breach continues, but it cannot exceed EUR5000. 215. Austrian authorities also answered more than 3952 incoming VAT requests in the three years under review (1245 for 2009, 1361 for 2010 and 1346 for 2011) and in these requests, Austrias s VAT partners mainly ask for underlying documents justifying delivery of goods or provision of services, such as invoices, contracts and other supporting documents. The large number of requests received as well as the capacity of Austrias authorities to provide answers gives broad assurance that underlying documentation is kept in compliance with the standard in Austria. 216. The peer input received indicates that Austria has been able to answer requests in this regard, without difficulty. Austria has in the three year period under review exchanged information concerning underlying documentation in 214 cases. Of these, 80 cases concerned companies, 22 cases involved partnerships and 112 cases were related to individuals.
when there is a suspicion of money laundering or terrorist financing, regardless of any applicable derogation, exemption or threshold; and when there are doubts about the veracity or adequacy of previously obtained customer identification data.
222. Pursuant to the same section, the identification and verification of the identity of the customer and its beneficial owners must be ascertained by the personal presentation of an official photo identification document issued by a government authority. Where the customer is a company or entity, the identity must be ascertained on the basis of a meaningful supporting document which is available under the usual legal standards of the country in which the legal person is incorporated. In addition, the identity of the natural person competent to represent this legal entity is ascertained by the presentation of an official photo identification document. 223. The BWG (s.40(3)) also requires that undertakings and persons covered by the AML/CFT obligations store: (i)documents serving the purpose of identification for at least five years after the termination of the business relationship with the customer; and (ii)all documentation and records of all transactions for a period of at least five years after their execution. 224. Banks and financial institutions that do not comply, even if only negligently, with the requirements set out in section40 of the BWG are guilty of an administrative offence punishable with a term of imprisonment of up to six weeks or a fine of up to EUR75000 unless the act constitutes a criminal offence falling into the jurisdiction of the courts. Banks and financial institutions could also be charged with committing or participating in money laundering and therefore be subject to criminal sanctions according to s.165 of the Penal Code. Any person involved in money laundering, when the amount involved is over EUR50000 is punishable with a term of imprisonment from one to ten years (s.165(4) of the Penal Code). 225. Financial institutions are supervised by the FMA. This supervisory body has two divisions, one that is involved in prevention of money laundering and terrorist financing and the second deals with internal affairs and European integration. In its supervisory role, the FMA supervises the compliance with the legal provisions and due diligence obligations in the area of prevention and combating of money laundering and terrorist financing. The supervision of the regulated entities by the FMA covers (i)credit institutions, (ii)life-insurance undertakings, (iii)payment institutions, (iv)e-money institutions and (v)investment firm and investment service providers. 226. The FMA conducts its supervisory activities using measures like onsite visits and other off-site supervision. On-site supervision includes on-site visits and company visits. On-site visits are two week long exercises and the audit module includes carrying out system review of the general strategies
B. Access to Information
Overview
229. A variety of information may be needed in respect of the administration and enforcement of relevant tax laws and jurisdictions should have the authority to access all such information. This includes information held by banks and other financial institutions as well as information concerning the ownership of companies or the identity of interest holders in other persons or entities. This section of the report assesses Austrias legal and regulatory framework gives to the authorities access powers that cover the right types of persons and information, the effectiveness of its practices and whether the rights and safeguards that are in place would be compatible with effective exchange of information. 230. Following its commitment to the international standards in March 2009, Austria enacted on 8September 2009 new legislation (Administrative Assistance Implementation Act) expressly stating that all domestic investigation and information gathering measures can also be used for the purpose of answering incoming international requests for exchange of information in tax matters (EOI requests). Further, this legislation also allows for the access by revenue authorities to bank information when the request is made under a treaty which includes provisions allowing for the exchange of bank information, whether these provisions are contained in Double Taxation Conventions or Tax Information Exchange Agreements. Austria now has 40 EOI relationships which allow for exchange of bank information but must ensure that access to bank information is available to all its treaty and relevant partners. 231. This new legislation also provides for the prior notification of the taxpayer concerned when a request is received for bank information. This notification is a mandatory prerequisite to the favourable examination of the incoming request by the Austrian competent authorities. As such, the implementation of a notification procedure complies with the standard. However, the notification procedure should also allow for exceptions in urgent cases or when the notification is likely to undermine the provision of the requested information.
235. The competent authority for Austria in respect of EOI is the Federal Ministry of Finance. Austrias powers to access information for EOI purposes vary depending on whether the EOI agreement in question was signed before or after Austrias commitment to the international standards. EOI agreements signed before March 2009 allow for the exchange of ownership and accounting information, as well as bank information provided that criminal proceedings concerning tax fraud are already pending in the requesting state. EOI mechanisms signed since that date, which include wording akin to Article26(5) of the OECD Model Tax Convention, also allow for the exchange of bank information in all criminal tax matters and in civil tax matters.
236. To reflect this change and its commitment to the standards, Austria brought into effect new legislation on 8September 2009, the purpose of which is to implement rules regarding the collection of information for EOI purposes. Although particularly adopted to allow an access to bank information in civil tax matters, the Administrative Assistance Implementation Act (ADG) applies to all cases where administrative assistance is requested by a treaty partner. Thus, whether the request relates to ownership, accounting, or bank information, the ADG is the core legal framework under which EOI takes place. In particular, section2(1) clearly states that in connection with the applicable provision of law, the investigative action necessary to deal with a foreign request for administrative assistance shall be conducted in the same manner as if the foreign taxes were domestic taxes. 237. In all cases, the ADG provides for checking of the incoming request by the Austrian competent authority to ascertain whether or not this request meets the prerequisites to grant administrative assistance under the provisions of the applicable EOI mechanisms (s.2(3) ADG). 238. The competent authority in Austria is the Central Liaison Office (CLO). The CLO is part of the Tax Investigation Service of the tax administration of Austria. The Head of the CLO has two teams under him (in Vienna) with a total of 20 people working in these two teams including the team leaders. Apart from these two teams in Vienna there is one person located at Linz, one at Innsbruck and two at Salzburg. These persons located outside Vienna, were earlier deployed for operation of the treaty with Germany but are now being integrated with the head office of the CLO. These persons, therefore, now deal with the requests that are received from Germany, through the office of the CLO. 239. The office of the CLO does not only deal with issues of information on request. It also handles spontaneous exchange and mutual assistance within the European Union (EU). It operates as the single interaction point for tax-related information exchange between other jurisdictions and the local tax offices of Austria. The Head of the CLO is also head of the legal team within the Tax Investigation Service. 240. Contact details of the CLO are published on the EU-CIRCA website for countries within the EU. For countries outside the EU, the details of the CLO are published on the the secure website of the OECD or exchanged via email. The CLO contact details are detailed on the website of the Federal Ministry of Finance. 241. To facilitate easy and efficient EOI, within the EU, Austria uses standardised forms and electronic exchange of information. The manner in which the requests are dealt with in practice are discussed in greater detail under the element C.5.
247. Pursuant to section172, anyone required to testify as a witness can also, upon request of the fiscal authorities, be required to submit documents, deeds and business records relating to specifically designated facts for inspection. Section173 of the BAO finally states that these testimonies may also be provided in writing. 248. Considering these broad powers and the various avenues enabling the revenue authorities to gather information, any type of ownership or accounting information can be collected in Austria from taxpayers or any third parties and can be exchanged upon request with counterparts. 249. The CLO has access to various databases, besides the central database. These other databases are, (i) electronic land register, (ii) electronic commercial register, (iii)electronic central register of residents, (iv)electronic central trade register, (v)electronic central register of associations, (vi)electronic central licensing register for vehicles and (vii)electronic vehicle permit and information register. These are all means whereby a lot of information is directly available. 250. The office of the CLO has also access to the taxpayers database that is maintained by the tax administration. In cases where the information requested is available on that database (tax returns, type of income received, residential status, habitual abode) and the help of the local tax office is not required, the CLO will be able to answer the EOI request immediately, while informing the jurisdictional local tax office. Austria has reported that it can answer about 11% of the requests from the databases that it has access to In respect of the rest; the local tax office has to make third party enquiries or enquiries with the taxpayer. 251. Where the information (be it identity and ownership information or concerning accounting records), is required to be gathered by the local tax office, they are given four months to do so. The local tax office will first try to answer the request from the database or the paper files that it maintains. The tax office then contacts the person. In cases where the information is required urgently, this time limit for the local tax office to answer the request can be shortened by the CLO. In practice, in 55% of the cases, the information was already in possession of the tax administration and in 20% of the cases, it was in possession of the taxpayer. In 9% of the cases, it was in possession of a third party and in 4% cases it was in possession of a bank. In about 1% of the cases, it was in possession of another governmental authority. 252. The tax authorities have the power to summon accountants and professionals during the course of the audit of a taxpayer. They can obtain information from the professional insofar as it is not protected by professional secrecy. The scope of professional secrecy is in line with the international standard and this has been clarified by the Austrian Supreme Court (in the case of Oberster Gerichtshof/OGH) in the decision dated 18October 2012.
and mechanisms with the banks to ensure that swift answers will be provided in answer to requests received. It has already been decided that the banks will normally be given two weeks to provide the information. 257. The CLO has also reported that it is not legally obliged to send the original request to the bank and that in practice only the elements necessary to collect the requested information will be provided to the bank. However, under the provisions of the ADG, the essential elements of the information request will be provided to the individuals who have rights of disposition arising out of the business relationship with the credit institution (relating to the bank account) which is subject to the request during the prior notification process. Austria has also clarified that it will never pass on such information as the original request received, consultation protocols, notices of other authorities, reports and similar documents. For the information that is sought from banks, Austrias authorities have reported that no standard notification document has been developed as they have not yet had any practical experience and have not been able to specify which information from the incoming request will be disclosed to the person concerned (see section C.3). 258. Apart from this procedure, there are no further restrictions on the powers of the CLO to access bank information. The CLO is ready to answer all incoming requests pertaining to bank information and has taken the necessary measures to make sure that banks will answer expeditiously. However, Austria has no practical experience on exchanging bank information under the new laws that it has brought in force. It is recommended that Austria monitors this issue and ensure that its practical implementation is in line with the international standard. 259. In other cases, where the request for banking information is under an EOI arrangement that is not in accordance with the international standard,17 the ability to obtain banking information is seriously restricted by a requirement for the requesting party to obtain the taxpayers consent. Only when such consent is provided will the request be sent to the local tax office. The local tax office then contacts the bank/credit institution requiring the production of the requested information. The local tax office has a time limit of three months to collect this information, as set by the CLO. In criminal cases, the procedure of referral to the local tax office is the same, except that here the CLO needs a formal statement from the requesting jurisdiction indicating that it is a criminal matter. These cases are usually processed by the criminal division of the competent local tax office which contacts the relevant bank. The deadline for obtaining this information is once again, three months.
17. Namely, the mechanism for EOI does not include a provision on administrative assistance stating that in no circumstances may Austria decline to provide information merely because the information is held by a credit institution.
269. Therefore, where information is sought under an EOI mechanism allowing for the exchange of bank information, the Austrian authorities may issue a request directly to the bank that holds the information. For access to information for the purposes of EOI under Austrias other agreements, which up to now do not follow the OECD standard, bank secrecy cannot be lifted except in criminal cases subject to special requirements as those agreements do not include an express provision equivalent to Article26(5) of the OECD Model Tax Convention. This concerns 63 of Austrias partners.
is covered by professional secrecy rules, taxpayers have increased obligation to cooperate with revenue authorities. In addition, all information necessary for tax purposes may primarily be required from the taxpayer by the Austrian revenue authorities (see in particular s.143 of the BAO). 275. Pursuant to the Terms of Reference, communications between attorneys and their clients can be protected, however it appears that secrecy provisions contained in Austrian legislation also encompass other professions, in particular accountants and notaries. During the phase1 review, it was not clear whether attorneys or notaries acting as financial intermediaries, trustee or Treuhnder, are allowed under Austrian legislation to disclose to the revenue authorities all information acquired in those capacities. Finally, from both tax and professional secrecy rules, the extent to which information held by lawyers, accountants or civil law notaries can be accessed for the purpose of international exchanges of information was not clear. 276. This issue was further reviewed during the course of the phase2 review, in particular to clearly circumscribe the situations in which professional secrecy rules may prevent the Austrian authorities to access information for EOI purposes. Officials from the Chamber of Civil Notaries indicated that although the information they held, for example when acting as a Treuhnder, would be subject to professional secrecy, this provision would be overridden if they were required to provide such information to a Fiscal Authority. All information in the possession of an accountant can be obtained by the Austrian tax authorities both for domestic purposes and in response to a valid EOI request. Professionals, including lawyers, were bound to provide information to the tax administration as far as this was not in conflict with the obligations arising from the professional secrecy rules as laid down in the particular professional code. All information kept by accountants and notaries on behalf of their clients and requested by tax authorities for tax purposes must be provided upon request. A judicial pronouncement of the Austria Supreme Court (in the case of Oberster Gerichtshof/OGH) of 18October 2012, showed that information related to a criminal tax matter could not be placed with a service provider or professional to avoid access to this information by government authorities. As a result, it may be concluded that professional secrecy rules do not prevent tax authorities accessing information held by notaries or accountants either for domestic or EOI purposes.
Phase2 rating To be finalised as soon as a representative subset of Phase2 reviews is completed Factors underlying recommendation Prior to the enactment of the ADG, Austrias experience of exchanging banking information was very limited. The access to banking information measures provided by the ADG have not yet been tested in practice. Recommendation Austria should monitor access to banking information to ensure that it is in a position to exchange information in line with the international standard.
279. For the collection of bank information, the ADG provides for prerequisites to handle an incoming request, in particular, a prior notification procedure. This procedure comprises the following steps: where the information sought relates to bank information, the Federal Ministry of Finance must without delay notify the the individual(s) who have rights of disposition arising out of the business relationship with the credit institution that there has been an international request for administrative assistance and what information has been requested, simultaneously providing notice to the credit institution (s.4(1) ADG); in response to a well-founded application by the the individual(s) who have rights of disposition arising out of the business relationship with the credit institution, the Federal Ministry of Finance will rule on whether the material prerequisites18 for pre-empting banking secrecy have been met (s.4(2) ADG). The purpose of this pre-analysis of the request is to ensure that the incoming request is foreseeably relevant and therefore that administrative assistance can be granted by Austria; the individual concerned can send to the Federal Ministry of Finance an application for an administrative notice containing a determination of the material prerequisites. This must be sent on or before the end of two weeks following notification of the affected persons. That authority must, in that case, issue a decision of first and last instance (s.4(2) ADG); following expiry of the application period or, in the event of an application for a determination by administrative notice, upon expiry of a six-week period from the date the notice was served, the Federal Ministry of Finance will comply without delay with the foreign request for administrative assistance (s.4(3) of the ADG); and in the event that an appeal is filed against that administrative notice, upon application of the appellant, to grant suspensory effect the authority must await the decision of the Constitutional Court or Administrative Court before responding to the EOI request. If the court refuses to grant suspensory effect the competent authority may immediately after that decision submit the requested information to the requesting state without awaiting the final decision of the court (s.4(3)).
18.
i.e.in particular that the identity of the person under examination as well as, in 11 DTCs, to the extent known the name and the address of any person believed to be in possession of the requested information or, in 12 DTCS, the name and the address of this person have been provided.
may have on the provision of banking information, the point that emerges is that Austria does not have any practical experience as far as these new procedures are concerned. It is recommended that Austria monitor its new procedures and make sure that their practical implementation is in line with the international standard.
Determination and factors underlying recommendations
Phase1 determination The element is in place, but certain aspects of the legal implementation of the element need improvement. Factors underlying recommendation The Administrative Assistance Implementation Act of 2009 requires the prior notification of the individual concerned when there is a request for bank information and this prior notification procedure does not allow for any exception. Recommendation It is recommended that certain exceptions from prior notification be permitted (e.g.in cases in which the information requested is of a very urgent nature or the notification is likely to undermine the chance of the success of the investigation conducted by the requesting jurisdiction).
Phase2 rating To be finalised as soon as a representative subset of Phase2 reviews is completed Factors underlying recommendation Austria does not have any practical experience of the new procedure to obtain banking information that it has put in place under the Administrative Assistance Implementation Act. Recommendation Besides the introduction of exceptions consistent with the international standard, Austria should, in instances where the prior notification procedure can be applied in compliance with the international standard, monitor the practical implementation of the procedure provided by the Administrative Assistance Implementation Act to ensure that it can meet its obligations to exchange banking information under its EOI arrangements.
C. Exchanging Information
Overview
286. Jurisdictions generally cannot exchange information for tax purposes unless they have a legal basis or mechanism for doing so. In Austria, the legal authority to exchange information is derived from double tax conventions (DTCs) and tax information exchange agreements (TIEAs) once they become part of Austrias domestic law. This section of the report examines whether Austria has a network of information exchange agreements that would allow it to achieve effective exchange of information in practice. 287. Austrias international exchange of information (EOI) mechanisms cover 92 partner jurisdictions, 87 of them being covered by double taxation conventions (DTCs), 5 by taxation information exchange agreements (TIEAs). Where not updated since March 2009 following Austrias commitment to the standard, these agreements do not allow for exchange of information in compliance with the standard. Austria can also exchange information with its EU counterparts under the scope of the EU Council Directive on Administrative Cooperation in the field of Taxation 2011/16/EU, in force from 1January 2013, concerning mutual assistance by the competent authorities of the Member States in the field of direct taxation and taxation of insurance premiums. 288. Since its commitment to the international standards for transparency and exchange of information for tax purposes in March 2009, Austria has signed 9 DTCs, 23 protocols and 5 TIEAs allowing for the exchange of information, including bank information. The five TIEAs signed by Austria strictly respect the wording of the OECD Model TIEA. All protocols and DTCs include the full wording of Article26 of the OECD Model Tax Convention, including paragraphs 4 and 5, supplemented by additional rules listing the type of information to be provided by the requesting jurisdictions in its request for information. 9 of these agreements, with Belgium; Bosnia and Herzegovina; Bulgaria; Luxembourg; Mexico; Qatar; Serbia; South Africa; and Tajikistan, include provisions requiring the requesting party to provide the name and address of the holder of information when making an
are conducive to proper security of the documents and it also has good IT systems in this regard. Austria has, in its practices, been able to ensure that the rights and safeguard that ought to be available to the persons in respect of whom information is exchanged, are protected without hindering effective EOI. 294. Austria has in place a system of responses to incoming requests that is professional, in the sense that it provides all types of information, accurately and respects the needs of confidentiality. The peer input has indicated that the peers are satisfied with the quality of information provided by Austria. The practices followed by Austria also show that normally the information requested is provided in a timely manner. However, it has been indicated by Austrias partners and that Austria does not routinely provide update of status when not in a position to provide the requested information in 90 days. Austria should improve its practices in this area.
295. Austria has an extensive network of EOI arrangements covering 92 jurisdictions. Between March 2009 and May 2013, 8 DTCs, 15 protocols amending DTCs and 4 TIEAs were signed. All these mechanisms allow for the exchange of bank information. Since then, Austria has revised six treaties21 by entering into protocols and also signed one new DTC22 and one new TIEA23 They all allow for the exchange of bank information. Since 1January 2013, the new EU Council Directive 2011/16/EU has also been in effect, allowing for EOI to the standard with a further 15 partners. 296. The following tabulation indicates under which of its treaties Austria is able to exchange all types of information, including banking information. (i) Number of DTCs/TIEAs that provide exchange of all types of information including banking information 3724
21. Czech Republic; Georgia; Hong Kong, China; Romania; Slovenia; South Africa. 22. Chile. 23. Jersey. 24. Andorra; Bahrain; Belgium; Bosnia and Herzegovina; Bulgaria; Canada; Chile; Cyprus; Czech Republic; Denmark; Finland; France; Germany; Georgia; Gibraltar; Hong Kong, China; Ireland; Jersey; Luxembourg; Libya; Lichtenstein; Mexico; Monaco; Netherlands; Norway; Qatar; Romania; St. Vincent and the Grenadines; San Marino; Serbia; Singapore; Slovenia; South Africa; Sweden; Switzerland; Tajikistan and the United Kingdom.
25.
Andorra; Bahrain; Canada; Chile; Cyprus; Czech Republic; Denmark; Finland; France; Germany; Georgia; Gibraltar; Hong Kong, China; Ireland; Jersey; Libya; Lichtenstein; Monaco; Netherlands; Norway; Romania; St. Vincent and the Grenadines; San Marino; Singapore; Slovenia; Sweden; Switzerland; and the United Kingdom. 26. Andorra; Bahrain; Cyprus; Denmark; Finland; Germany; Georgia; Gibraltar; Ireland; Jersey; Monaco; Netherlands; Norway; St. Vincent and the Grenadines; Sweden; Switzerland; and the United Kingdom. 27. Andorra; Bahrain; Belgium; Bulgaria; Canada; Chile; Cyprus; Czech Republic; Denmark; Estonia; Finland; France; Germany; Georgia; Gibraltar; Greece; Hong Kong, China; Hungary; Ireland; Italy; Jersey; Latvia; Lithuania; Luxembourg; Malta; Monaco; Netherlands; Norway; Poland; Portugal; Romania; San, Marino; St. Vincent and the Grenadines; Singapore; Slovakia; Slovenia; Spain; Sweden; Switzerland and the United Kingdom. 28. Andorra; Bahrain; Belgium; Bulgaria; Cyprus; Czech Republic; Denmark; Estonia; Finland; France; Germany; Gibraltar; Greece; Hungary; Ireland; Italy; Jersey; Latvia; Lithuania; Luxembourg; Malta; Monaco; Netherlands; Poland; Portugal; Romania; St. Vincent and the Grenadines; Slovakia; Slovenia; Spain; Sweden; Switzerland and the United Kingdom.
persons acting in an agency or fiduciary capacity or because the information relates to an ownership interest. 309. The 23 protocols amending DTCs, the 9 DTCs and the 5 TIEAs signed by Austria since its commitment to the standards contain provisions similar to paragraph5 of Article26 of the OECD Model Tax Convention. These are the treaties signed with: Andorra; Bahrain; Belgium; Bosnia and Herzegovina; Bulgaria; Canada; Cyprus29; Czech Republic; Denmark; Finland; France, Germany; Georgia; Gibraltar; Hong Kong, China; Ireland; Libya; Luxembourg; Mexico; Monaco; the Netherlands; Norway; Qatar; Romania; Saint Vincent and the Grenadines; San Marino; Serbia; Singapore; Slovenia; South Africa; Sweden; Switzerland; Tajikistan; and the United Kingdom. 9 of these agreements (including with Belgium Bulgaria, and Luxembourg) do not meet the standard. Austria can also exchange bank information with 14 other countries that are parties to the EU Directive 2011/16/EU which is in effect from 1January 2013. These countries are Belgium; Bulgaria, Estonia, Greece; Hungary, Italy, Latvia, Lithuania, Luxembourg, Malta, Poland, Portugal, Slovakia and Spain. 310. Austria cannot however exchange bank information under the 58 DTCs that have not been updated since 2009. 311. Peer inputs received during the phase2 review have highlighted that a number of Austrias treaty partners have, during the period under review, requested bank information but been unsuccessful in their request owing to the lack of provision in the treaty enabling the use of the ADG legislation. This has, therefore, been a practical impediment during the period under review and the practical implementation of the ADG should continue to be monitored to ensure it enables the effective exchange of information to the international standard.
29. Footnote by Turkey: The information in this document with reference to Cyprus relates to the southern part of the Island. There is no single authority representing both Turkish and Greek Cypriot people on the Island. Turkey recognizes the Turkish Republic of Northern Cyprus (TRNC). Until a lasting and equitable solution is found within the context of the United Nations, Turkey shall preserve its position concerning the Cyprus issue. Footnote by all the European Union Member States of the OECD and the European Union: The Republic of Cyprus is recognised by all members of the United Nations with the exception of Turkey. The information in this document relates to the area under the effective control of the Government of the Republic of Cyprus..
exchange of information should not be constrained by the application of the dual criminality principle. 318. None of Austria DTCs or TIEAs specifically includes a dual criminality principle to restrict exchange of information. Austria does not have any domestic legislation resulting in application of such a principle. 319. None of the peers made any adverse comment in this regard. The procedure that is followed by the CLO does not require the existence of dual criminality to trigger its EOI mechanism.
In force (ToRC.1.8)
325. Exchange of information cannot take place unless a jurisdiction has exchange of information arrangements in force. The international standard requires that jurisdictions take all steps necessary to bring information arrangements that have been signed into force expeditiously. 326. In Austria, all EOI mechanisms, are, according to article50 of the Constitution, part of the international law and must be incorporated into Austrian domestic law. To become effective, all EOI mechanisms, either DTCs or TIEAs, must be ratified by both Chambers of the Parliament (art.50(1)(1) Constitutional Law with respect to approval by the Chamber of Representatives; art.50(2)(2) for approval by the Chamber of States). 327. Since the adoption of the phase1 report, the number of DTCs/TIEAs that are in force stands at 17.30 One other treaty has been ratified by Austria but still need to be by its partners (Belgium). It has been mentioned earlier that Austria has 40 EOI relationships that are to the standard, including countries covered by the EU Directive 2011/16/EU. Of these Austria 33 are in force.31
In line with its commitment to the international standard, Austria should ensure that the identification requirements in all of its new EOI mechanisms conform with the international standard.
330. The standards require that jurisdictions exchange information with all relevant partners, meaning those partners who are interested in entering into an information exchange arrangement. Agreements cannot be concluded only with counterparties without economic significance. If it appears that a jurisdiction is refusing to enter into agreements or negotiations with partners, in particular ones that have a reasonable expectation of requiring information from that jurisdiction in order to properly administer and enforce its tax laws it may indicate a lack of commitment to implement the standards. 331. Since its commitment to the international standards, Austria has only concluded DTCs that contain text akin to a full version of Article26 of the
334. In addition to the treaties already ratified, Austria, has mentioned that pending negotiations to update the existing DTCs are underway with Australia; Brazil; China; Croatia; Greece; Hungary; India; Indonesia; Italy; South Korea; Kazakhstan; Malaysia; New Zealand; Poland; Portugal; the Russian Federation; Saudi Arabia; the Slovak Republic; Spain; Turkey; Turkmenistan; Ukraine and Vietnam.
32. Andorra; Bahrain; Belgium; Bulgaria; Cyprus; Czech Republic; Denmark; Estonia; Finland; France; Georgia; Germany; Gibraltar; Greece; Hungary; Ireland; Italy; Jersey; Latvia; Libya; Lithuania; Liechtenstein; Luxembourg; Malta; Monaco; Netherlands; Poland; Portugal; Romania; St. Vincent and the Grenadines; Singapore; Slovakia; Slovenia; Spain; Sweden; Switzerland; Tajikistan and the United Kingdom. Belgium; Canada; Chile; Denmark; Estonia; Finland; France; Germany; Greece; Hungary; Ireland; Italy; Luxembourg; Mexico; the Netherlands; Norway; Poland; Portugal; Slovakia; Slovenia; Sweden; Switzerland and the United Kingdom. Canada; France; Germany; Italy; Mexico; South Africa; and the United Kingdom. All other G20 members but Argentina, are covered by a DTC not meeting the standard. Andorra; Bahrain; Belgium; Canada; Chile; Cyprus; Czech Republic; Denmark; Estonia; Finland; France; Georgia; Germany; Gibraltar; Hong Kong, China; Hungary; Ireland; Italy; Jersey Latvia; Lithuania; Luxembourg; Liechtenstein; Malta; Mexico; Monaco; the Netherlands; Norway; Poland; Portugal; Qatar; Romania; Saint Vincent and the Grenadines; San Marino; Singapore; South Africa; Spain; Sweden; Switzerland and the United Kingdom.
335. Austria is actively working to further expand its network of agreements. New DTCs are also being negotiated with Argentina; Egypt; Iceland; Israel; Japan; Liechtenstein; Oman and Sri Lanka; Syria and TIEAs are being negotiated with The Bahamas; Cayman Islands; Guernsey; and Liberia. 336. Ultimately, the international standard requires that a jurisdiction exchange information with all relevant partners, meaning those partners who are interested in entering into an information agreement. India had approached Austria in 2009 indicating its interest in entering into negotiations to update the existing DTC. While a meeting took place in April 2010, the matter has not been completely resolved as yet. Guernsey has mentioned having approached Austria to conclude a TIEA. In response to this request, Austria provided Guernsey with a draft TIEA in August 2009. The negotiations were subsequently concluded in September 2011; but the signing of the Agreement is still pending, as Guernsey has not received notification that Austria has completed its domestic formalities in order to do so. 337. Austria authorities have advised that, with India, there may be certain misunderstandings on the contents of the Austrian proposal which led to delay progress of the negotiations. In the meantime discussions have been reopened with India and Austria hopes to finalise them soon.
Determination and factors underlying recommendations
Phase1 determination The element is in place, but certain aspects of the legal implementation of the element need improvement. Factors underlying recommendations Of the 92 EOI arrangements concluded by Austria, only 40 meet the international standard. Austria has not on all occasions successfully progressed negotiations to establish EOI arrangements when requested to do so. Recommendations Austria should continue to develop its EOI network to the standard with all relevant partners. Austria should actively work to progress negotiations and establish exchange of information agreements with all partners who are interested in entering into an information exchange arrangement with it.
C.3. Confidentiality
The jurisdictions mechanisms for exchange of information should have adequate provisions to ensure the confidentiality of information received.
342. When the confidentiality obligations are not fulfilled by a civil servant, section251 of the Fiscal Offence Act foresees the application of the sanctions provided for by section310 of the Austrian Criminal Code; imprisonment for up to three years. 343. In practice, Austria authorities have strong rules to ensure that all information received is kept confidential. First, all documents related to EOI requests are stored electronically. Where there are physical documents they are stored in a storage area, where access is allowed only to authorised personnel. Second, when requests are sent to the local tax office, they are sent electronically. All these communications carry the confidentiality stamp placed by the CLOs office. Where access is sought to any of the data that is stored electronically, it has to be justified and this justification must be linked to the actual functions of the official. The need to maintain physical files connected with EOI matters has been progressively eliminated. Austria reports that there are automatic backup procedures in place for the data of the CLO. The IT centre of the Republic of Austria is responsible for this backup. The data is stored on a special server which is only accessible to the CLO staff. A daily storage on this server of the tax administration is provided. This server is mirrored daily on a national high security server. Information could only be lost if it is stored the same day. 344. Apart from this, Austrian officials take care to follow a clean desk policy. This ensures that important papers are not left unattended where they may fall into the hands of unauthorised persons. While Austria does not have a formal manual on office procedures, these measures are given wide publicity through training exercise and the staff is regularly sensitised to the issue of confidentiality. This includes officers working in the office of the CLO and the EOI unit and also those in the local tax office. The IT systems are also so developed that officers can access their computers only with a personal customised key or token. 345. Austria has sufficient safeguards in its procedures and practices to ensure confidentiality. In practice, there have been no cases in which information received by the competent authority from an EOI partner has been disclosed other than in accordance with the terms under which it was provided. However, Austria has reported that no common or standardised notice currently exists. Austria has also clarified that it will never pass on such information as the original request received, consultation protocols, notices of other authorities, reports and similar documents. 346. However, Austria has stated that the underlying principle is that the taxpayer should have as much information as is required to defend his tax interests. Therefore, it is not clear as to how much information the taxpayer will be allowed to see in this process. It is therefore recommended that Austria makes sure that only the elements that are necessary to collect
349. All of the agreements concluded by Austria since 2009 incorporate wording modeled on Article26(2) of the OECD Model Tax Convention or Article8 of the OECD Model TIEA providing that requested jurisdictions are not obliged to provide information which would disclose any trade, business, industrial, commercial or professional secret or information which is the subject of attorney-client privilege/legal privilege or information the disclosure of which would be contrary to public policy. 350. The practical application of the procedures that protect the rights of taxpayers that was reviewed indicates that Austria acts in a manner that ensures this.
Determination and factors underlying recommendations
Phase1 determination The element is in place. Phase2 rating To be finalised as soon as a representative subset of Phase2 reviews is completed
2% 0%
1% 0%
6 6
2% 2%
3 1
1% 1%
* Austria counts each written request from an EOI partner as one EOI request even where more than one person is the subject of an inquiry and/or more than one piece of information is requested. ** The time periods in this table are counted from the date of receipt of the request to the date on which the final and complete response was issued.
354. In this respect, it may be mentioned that with the new EU Council Directive on Administrative Cooperation in the field of Taxation 2011/16/EU that entered in effect on 1January 2013, the Austrian authorities have set their standard time limit to answer a request to comply with the requirements of the new directive (following this directive, the information must be exchanged within six months of the receipt of the request for complex cases (where information is not readily available), except when the requested party already has this information available; in the latter cases, answers must be provided within two months). In practice, Austrias authorities have reported that they have not set up, as a practice, a 90-day timeline to answer incoming requests. 355. Peer inputs received prior to the phase2 review indicated that in cases where Austria does not provide information in 90 days, it does not provide status updates unless specifically asked for. Austria states that they are in the process of changing their procedures in order to set up a system that will ensure the provision of status updates. It may be mentioned here that the phase2 review found that of the 829 requests that were received in the three year review period, Austria has answered 589 (71%) in less than 90 days.
356. In cases where delay has occurred, Austria has given the following reasons: (i) The applicant state asks for information concerning a taxpayer who is not resident in Austria. (ii) In connection with requests for bank information received before the adoption of the Administrative Assistance Implementation Act, Austria asked the applicant State to provide confirmation (consent) of the taxpayer concerned, to disclose the bank information. The taxpayer refused to do so and so it was not possible to provide the requested information due to article38 of the Austrian Federal Banking Act. (iii) Taxpayer concerned has more than one domicile in Austria: in this case more than one Austrian tax office are involved in the course of preparing an answer to the request. (iv) The competent tax office does not answer the case despite several reminders of the CLO. (v) The change in the competence of the Austrian tax offices to answer the request leads to delays and in addition the report may be incomplete. (vi) The requested information is very complex, e.g.where the investigation and proof of possible money transfers between Austrian and the applicant state via accounts held in a third country is required in the course of answering a request. Austria has mentioned that the cases where it has taken more than 180 days to answer are those that involve (a)calculation of profits, (b)requests in connection with a loan, (c)request in connection with the method of payment, (d)request in connection with license fees, (e)verification of documents, (f)requests in connection with clarification of investment between holding and affiliate companies, (g)verification if transactions have been carried out, (h)request in connection with suspected fraud, (i)request in connection with pension payments, (j)verification of services, (k)requests in connection with transfer pricing, (l)requests in connection with taxation and residence, (m)request in connection with the management board of a company in Austria, (n)sale of company shares, (o)to provide documents and tax returns, (p)requests in connection with interest income, (q)investigation in connection with pecuniary or financial circumstances and, (r)requests in connection with increase of capital. 357. Over the period under review, answers were not provided within 90 days in 29% of cases. This appears to stem, primarily, from the time that
the requesting jurisdiction about the decline of the request. For this, Austria has not developed any forms other than the standard EU forms, but these forms are used for other OECD countries as well. It would be worthwhile to mention here that Austria expects that each request will be accompanied by a short explanation about the background of the request. It expects that the questions have to be understandable and clear. There has to be a statement of the requesting state that it respects the terms of reciprocity, exhaustiveness, secrecy and disclosure. Austria states that in the three years under review, it has not refused any request on the grounds of inadequate information, that the request is not foreseeably relevant or a fishing expedition. 362. In practice, as soon as a request is received, the CLOs office will acknowledge receipt of the request if the requesting jurisdiction specifically asks for it. Once the request is received, a reference number is added to enable future tracking of the request. There are two specifically designated staff who fill in all the basic parameters and assign the specific number to the request. The CLO is currently using an extensive excel-based monitoring system where all cases are recorded, this system is manually uploaded with extensive details of each request and following the insertion of the data he is able to be used to track the progress of each request, including alerting officials in the CLO when deadlines are drawing near. This is accessible to all the staff members in the CLO. As has been mentioned earlier, the Austria CLO will try to answer the request on its own. Austria has reported that in 2011, the CLO could answer 18 cases on its own (14 in 2010 and seven in 2009). 363. Once the CLO has concluded that the information is such that it needs to be transmitted to the local office, the request is transmitted electronically to the local tax office. This will carry the confidential stamp of the CLOs office. The local tax office is normally given four months to answer these requests, especially if there is an external examination involved. Two weeks before this four month deadline (if the information is not yet received from the local office until then), the system in the CLOs office will display an alert. The CLOs office sends a reminder to the local office. The system that has been put in place is such that by the time the six month deadline is reached, the CLOs office should have issued at least three reminders. In collecting information, the tax offices may also receive assistance from other authorities and have access to electronic databases that are maintained by other authorities. 364. It must also be kept in mind that there is no dedicated EOI unit in the local tax office. The tax official who is assigned the task of collecting the information requested has other regular tasks to perform. When the local tax office has to approach a third party or the taxpayer, they are not required
Determination
Recommendations
Jurisdictions should ensure that ownership and identity information for all relevant entities and arrangements is available to their competent authorities. (ToR A.1) The element is not in place Although Austria has put in place new provisions to prohibit the issue of bearer shares by unlisted joint-stock companies, the mechanisms to identify the owners of bearer shares previously issued by these companies may not be sufficient. In addition, until full effect is given to these provisions (1January 2014), bearer shares can still be issued or transferred without identification of their holders. Information regarding the ownership of foreign companies incorporated outside the EU and that are resident for tax purposes in Austria may, under certain circumstances, not be available Phase2 rating: To be finalised as soon as a representative subset of Phase2 reviews is completed Austria should introduce mechanisms ensuring the identification of the holders of bearer shares in all instances.
In such cases, Austria should ensure that ownership and identity information is available.
Determination
Recommendations
Jurisdictions should ensure that reliable accounting records are kept for all relevant entities and arrangements. (ToR A.2) The element is in place. In the case of fiduciary relationship, there are some uncertainties as regards the detailed obligations to keep accounting records where the Treugeber or settlor is not resident in Austria and assets held through the fiduciary are located abroad. Phase2 rating: To be finalised as soon as a representative subset of Phase2 reviews is completed Banking information should be available for all account-holders. (ToR A.3) The element is in place. Phase2 rating: To be finalised as soon as a representative subset of Phase2 reviews is completed Competent authorities should have the power to obtain and provide information that is the subject of a request under an exchange of information arrangement from any person within their territorial jurisdiction who is in possession or control of such information (irrespective of any legal obligation on such person to maintain the secrecy of the information). (ToR B.1) The element is in place, but certain aspects of the legal implementation of the element need improvement. Phase2 rating: To be finalised as soon as a representative subset of Phase2 reviews is completed Restrictions on access to bank information provided for by Austrias domestic legislation are currently overridden in respect of only 40 of the 92 signed agreements. Prior to the enactment of the ADG, Austrias experience of exchanging banking information was very limited. The access to banking information measures provided by the ADG have not yet been tested in practice. Austria should ensure that its competent authority has access to bank information in respect of EOI requests made pursuant to all of its EOI agreements. Austria should monitor access to banking information to ensure it is in a position to exchange information in line with the international standard. Austria should make it clear that reliable accounting records are kept in the case of fiduciary relationships in any situation.
Determination
Recommendations
The rights and safeguards (e.g.notification, appeal rights) that apply to persons in the requested jurisdiction should be compatible with effective exchange of information. (ToR B.2) The element is in place, but certain aspects of the legal implementation of the element need improvement. The Administrative Assistance Implementation Act of 2009 requires the prior notification of the individual concerned when there is a request for bank information and this prior notification procedure does not allow for any exception. It is recommended that certain exceptions from prior notification be permitted (e.g.in cases in which the information requested is of a very urgent nature or the notification is likely to undermine the chance of the success of the investigation conducted by the requesting jurisdiction). Besides the introduction of exceptions consistent with the international standard, Austria should, in instances where the prior notification procedure can be applied in compliance with the international standard, monitor the practical implementation of the procedure provided by the Administrative Assistance Implementation Act to ensure that it can meet its obligations to exchange banking information under its EOI arrangements.
Austria does not have any practical experience of the prior notification procedure to obtain banking information that it has put in place under the Administrative Assistance Implementation Act.
Determination
Recommendations
Exchange of information mechanisms should allow for effective exchange of information. (ToR C.1) The element is in place, but certain aspects of the legal implementation of the element need improvement. As a result of domestic law limitations with respect to access to information for EOI purposes generally and access to bank in particular, only 40 of Austrias 92 EOI relationships for effective exchange of information to the standard. Of these 40 relationships, 33 are in force. Of the 37 agreements signed by Austria since its commitment to the standard, 9 establish identification requirements for the holder of information in Austria which are inconsistent with the international standard. Phase2 rating: To be finalised as soon as a representative subset of Phase2 reviews is completed The jurisdictions network of information exchange mechanisms should cover all relevant partners. (ToR C.2) The element is in place, but certain aspects of the legal implementation of the element need improvement. Of the 92 EOI arrangements concluded by Austria, only 40 meet the international standard. Austria has not on all occasions successfully progressed negotiations to establish EOI arrangements when requested to do so. Austria should continue to develop its EOI network to the standard with all relevant partners. Austria should actively work to progress negotiations and establish exchange of information agreements with all partners who are interested in entering into an information exchange arrangement with it. Austria should ensure that all its agreements provide for exchange of information to the standard.
In line with its commitment to the international standard, Austria should ensure that the identification requirements in all of its new EOI mechanisms conform with the international standard.
Determination Phase2 rating: To be finalised as soon as a representative subset of Phase2 reviews is completed
Recommendations
The jurisdictions mechanisms for exchange of information should have adequate provisions to ensure the confidentiality of information received. (ToR C.3) The element is in place. Phase2 rating: To be finalised as soon as a representative subset of Phase2 reviews is completed It is not clear as to how much information will be revealed to the taxpayer concerned by the Austrian authorities in order to answer an information request Austrias should make sure that only the elements that are necessary to collect information from taxpayers will be disclosed during the process of answering an information request.
The exchange of information mechanisms should respect the rights and safeguards of taxpayers and third parties. (ToR C.4) The element is in place. Phase2 rating: To be finalised as soon as a representative subset of Phase2 reviews is completed The jurisdiction should provide information under its network of agreements in a timely manner. (ToR C.5) The assessment team is not in a position to evaluate whether this element is in place, as it involves issues of practice that are dealt with in the Phase2 review. Phase2 rating: To be finalised as soon as a representative subset of Phase2 reviews is completed In a number of cases, Austria has not provided status updates within the 90 day period. Austria should take measures to ensure that it provides status updates to its treaty partners within 90 days where a complete response to a request is not possible within that timeframe.
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114 ANNEXES
environment and will also continue to increase its efforts to meet the expectations for timely status updates. Concerning recommendation C.3 where recently doubts have arisen as to whether Austria is in a position to adequately protect confidentiality of information received from other competent authorities Austria wishes to express that both the Austrian procedural law and the administrative practice are in line with the considerations made in the Commentary on Article26 of the OECD-Model. Elements of a foreign request which are not necessary to collect information from taxpayers will not be disclosed to the taxpayer when answering a foreign request. Austria will carefully monitor that element in its EOI practice and clarify that principle if necessary explicitly in future guidelines.
ANNEXES 115
Jurisdiction 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Albania Algeria Andorra37 Armenia Australia Azerbaijan Bahrain Barbados Belarus Belgium Belize Bosnia and Herzegovina Brazil Bulgaria Canada China
Type of EoI arrangement DTC DTC TIEA DTC DTC DTC DTC DTC DTC DTC Protocol EU Directive 2011/16/EU DTC DTC DTC DTC EU Directive 2011/16/EU DTC Protocol DTC
Date signed 14 Dec 2007 17 Jun 2003 17 Sep 2009 27 Feb 2002 8 Jul 1986 4 Jul 2000 2 Jul 2009 27 Feb 2006 16May 2001 29 Dec 1971 09 Oct 2009 15 Feb 2011 8May 2002 16 Dec 2010 24May 1975 20July 2010 15 Feb 2011 9 Dec 1976 9 Mar 2012 10April 1991
Date in force 1 Sep 2008 1 Dec 2006 10 Dec 2010 1 Mar 2004 1 Sept 1988 23 Feb 2001 1 Feb 2011 1 Apr 2007 9March 2002 28June 1973 Pending 1 Jan 2013 1 Dec 2003 1 Jan 2012 1 Jul 1976 3 Feb 2011 1 Jan 2013 17 Feb 1981 Pending 1 Nov 1992
37.
All agreements in bold are agreements allowing for exchange of bank information.
116 ANNEXES
Type of EoI arrangement DTC DTC DTC DTC 20 Cyprus38 Protocol EU Directive 2011/16/EU DTC 21 Czech Republic Protocol EU Directive 2011/16/EU DTC 22 Denmark 23 Egypt 24 Estonia Protocol EU Directive 2011/16/EU DTC DTC EU Directive 2011/16/EU DTC 25 Finland Protocol EU Directive 2011/16/EU
Date signed 6 Dec 2012 21 Sep 2000 26 Jun 2003 20 Mar 1990 4May 2012 15 Feb 2011 8 Jun 2006 9 Mar 2012 15 Feb 2011 25May 2007 16 Sep 2009 15 Feb 2011 16 Oct 1962 5 Apr 2001 15 Feb 2011 26 Jul 2000 04 Mar 11 15 Feb 2011
Date in force 27 Jun 2001 12 Sept 2006 1 Jan 1991 1April 2013 1 Jan 2013 22 Mar 2007 Pending 1 Jan 2013 28March 2008 01May 2010 1 Jan 2013 28 Oct 1963 12 Nov 2002 1 Jan 2013 1 Apr 2001 1 Dec 2011 1 Jan 2013
38. Footnote by Turkey: The information in this document with reference to Cyprus relates to the southern part of the Island. There is no single authority representing both Turkish and Greek Cypriot people on the Island. Turkey recognises the Turkish Republic of Northern Cyprus (TRNC). Until a lasting and equitable solution is found within the context of the United Nations, Turkey shall preserve its position concerning the Cyprus issue. Footnote by all the European Union Member States of the OECD and the European Union: The Republic of Cyprus is recognised by all members of the United Nations with the exception of Turkey. The information in this document relates to the area under the effective control of the Government of the Republic of Cyprus.
ANNEXES 117
Type of EoI arrangement DTC Protocol EU Directive 2011/16/EU DTC DTC Protocol DTC Protocol EU Directive 2011/16/EU TIEA DTC EU Directive 2011/16/EU DTC Protocol DTC EU Directive 2011/16/EU DTC DTC DTC DTC Protocol EU Directive 2011/16/EU DTC DTC EU Directive 2011/16/EU DTC TIEA
Date signed 26 Mar 1993 23May 2011 15 Feb 2011 10 Sep 2007 11 Apr 2005 4June 2012 24 Aug 2000 29 Dec 2010 15 Feb 2011 17 Sep 2009 18 Jul 2007 15 Feb 2011 25May 2010 25June 2012 25 Feb 1975 15 Feb 2011 8 Nov 1999 24 Jul 1986 11 Mar 2002 24May 1966 16 Dec 2009 15 Feb 2011 29 Jan 1970 29 Jun 1981 15 Feb 2011 20 Dec 1961 7 Sept 2012
Date in force 1 Sep 1994 Pending 1 Jan 2013 20 Jan 2008 1 Mar 2006 Pending 18 Aug 2002 1 Mar 2012 1 Jan 2013 1May 2010 1 Apr 2009 1 Jan 2013 1 Jan 2011 Pending 9 Feb 1976 1 Jan 2013 5 Sep 2001 1 Oct 1988 11 Jul 2004 5 Jan 1968 01May 2011 1 Jan 2013 26 Jan 1971 6 Apr 1985 1 Jan 2013 4 Apr 1963 1June 2013
39.
118 ANNEXES
Type of EoI arrangement DTC DTC DTC DTC 45 Latvia 46 Libya 47 Liechtenstein EU Directive 2011/16/EU DTC DTC Protocol DTC 48 Lithuania EU Directive 2011/16/EU DTC 49 Luxembourg 50 Malaysia 51 52 Malta Mexico Protocol EU Directive 2011/16/EU DTC DTC EU Directive 2011/16/EU DTC Protocol DTC TIEA DTC DTC DTC DTC 58 Netherlands 59 New Zealand 60 Norway Protocol EU Directive 2011/16/EU DTC DTC Protocol
Date signed 10 Sep 2004 18 Sep 2001 13 Jun 2002 14 Dec 2005 15 Feb 2011 16 Sep 2010 5 Nov 1969 29 Jan 2013 6 Apr 2005 15 Feb 2011 18 Dec 1962 07 Jul 2009 15 Feb 2011 20 Sep 1989 29May 1978 15 Feb 2011 13 Apr 2004 18 Sep 2009 29 Apr 2004 15 Sep 2009 3 Jul 2003 27 Feb 2002 15 Dec 2000 1 Sep 1970 9 Aug 2009 15 Feb 2011 21 Sep 2006 28 Nov 1995 16 Sep 2009
Date in force 1 Mar 2006 1May 2003 1 Mar 2004 16May 2007 1 Jan 2013 Pending 7 Dec 1970 Pending 17 Nov 2005 1 Jan 2013 7 Feb 1964 1 Sep 2010 1 Jan 2013 1 Dec 1990 13July 1979 1 Jan 2013 1 Jan 2005 01 Jul 2010 1 Jan 2005 1 Aug 2010 1 Oct 2004 12 Nov 2006 1 Jan 2002 21 Apr 1971 01 Jul 2010 1 Jan 2013 1 Dec 2007 1 Dec 1996 1June 2013
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Type of EoI arrangement DTC DTC DTC DTC EU Directive 2011/16/EU DTC EU Directive 2011/16/EU DTC Protocol EU Directive 2011/16/EU DTC TIEA DTC Protocol DTC DTC DTC Protocol DTC EU Directive 2011/16/EU DTC Protocol EU Directive 2011/16/EU DTC Protocol DTC
Date signed 30 Dec 2010 4 Aug 2005 9 Apr 1981 13 Jan 2004 15 Feb 2011 29 Dec 1970 15 Feb 2011 30 Mar 2005 1 Oct 2012 15 Feb 2011 13 Apr 2000 14 Sep 2009 24 Nov 2004 18 Sep 2009 19 Mar 2006 7May 2010 30 Nov 2001 15 sep 2009 7 Mar 1978 15 Feb 2011 1 Oct 1997 28 Sep 2011 15 Feb 2011 4 Mar 1996 22 Aug 2011 8 Oct 1985
Date in force 7March 2012 1 Jun 2007 1 Apr 1982 1 Apr 2005 1 Jan 2013 27 Feb 1972 1 Jan 2013 1 Feb 2006 Pending 1 Jan 2013 30 Dec 2002 1 Jan 2012 1 Dec 2005 1 Jun 2010 1 Jun 2007 17 Dec 2010 22 Oct 2002 1 Jun 2010 12 Feb 1979 1 Jan 2013 1 Feb 1999 Pending 1 Jan 2013 6 Feb 1997 1 Mar 2012 1 Dec 1987
65 Portugal
66 Romania 67 Russia
St Vincent and the 68 Grenadines 69 San Marino 70 71 72 73 Saudi Arabia Serbia Singapore Slovakia
74
Slovenia
75 76
120 ANNEXES
Type of EoI arrangement DTC 77 Spain EU Directive 2011/16/EU DTC 78 Sweden Protocol EU Directive 2011/16/EU DTC 79 Switzerland Protocol Protocol 80 Syria 81 Tajikistan DTC DTC DTC DTC DTC DTC DTC DTC DTC DTC 88 United Kingdom 89 USA 90 Uzbekistan 91 Venezuela 92 Vietnam Protocol EU Directive 2011/16/EU DTC DTC DTC DTC
Jurisdiction
Date signed 20 Dec 1966 15 Feb 2011 14May 1959 17 Dec 2009 15 Feb 2011 30 Jan 1974 3 Sep 2009 10May 2012 3 Mar 2009 10 Apr 1981 7June 2011 8May 1985 23 Jun 1977 28 Mar 2008 10 Apr 1981 16 Oct 1997 22 Sep 2003 30 Apr 1969 11 Sep 2009 15 Feb 2011 31May 1996 14 Jun 2000 12May 2006 2 Jun 2008
Date in force 1 Jan 1968 1 Jan 2013 29 Dec 1959 10 Jun 2010 1 Jan 2013 4 Dec 1974 1 Mar 2011 14 Nov 2012 pending 1 Oct 1982 1July 2012 1 Jul 1986 4 Sep 1978 1 Oct 2009 1 Oct 1982 20May 1999 1 Sep 2004 13 Nov 1970 19 Nov 2010 1 Jan 2013 1 Feb 1998 1 Aug 2001 17 Mar 2007 1 Jan 2010
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Regulatory Laws
Federal Banking Act Financial Market Authority Act Stock Exchange Act Insurance Supervision Act Federal Act regarding the Supervision of Investment Services
Taxation Laws
Fiscal Code Income tax Act Value added tax Act
122 ANNEXES
Fiscal Administration Organisation Act Fiscal Offences Act Non-Contentious Proceedings Act
Other Laws
Civil law notaries Code Accountancy Act Solicitor-Advocates Code Chartered Accountant Professionals Act Disciplinary Statute for Solicitor-Advocates and Trainee Solicitor-Advocates Criminal Code Criminal procedure Code Act of 3May 1868 governing procedures for the giving of oaths in court
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