Pursuant to the Austrian Supreme Administrative Court, for the purposes of the provision stipulating a forfeiture of tax loss carry-forwards, whether a substantial change in a corporation's shareholder structure has taken place is to be assessed from a formal perspective (rather than from an economic one).
Initially, three individuals (H, W and X) each directly held one third of the shares in an Austrian limited liability company, which had tax loss carry-forwards. After several share transfers H indirectly held 37.5% and W indirectly held 50% of the shares in the corporation, while X ceased to be a shareholder. The competent tax office denied the utilization of the tax loss carry-forwards pursuant to sec. 8(4)(2)(c) of the Austrian Corporate Income Tax Act (Körperschaftsteuergesetz ). Under this provision, tax loss carry-forwards cannot be utilized anymore if the identity of a corporation has substantially changed as regards its organisational, its economic and its shareholder structure.
In contrast to the prevailing opinion, the Austrian Federal Tax Court (12 January 2015, RV/7100894/2012) held that for the assessment of whether a substantial change in a corporation's shareholder structure has taken place, an economic, rather than a formal analysis is relevant, so that both direct and indirect shareholdings have to be taken into account.
Fortunately, however, the Austrian Supreme Administrative Court (13 September 2017, Ro 2015/13/0007) did not confirm this view. Rather, it stated that whether a substantial change in a corporation's shareholder structure has taken place, is to be solely determined by looking at who the direct shareholders of such corporation are.
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