The transfer of Austrian real estate triggers a 3.5% (2% in case of intra-family transfers) Austrian real estate transfer tax. In 2012, the Austrian Constitutional Court ruled that the provisions in the Austrian Real Estate Transfer Tax on the tax basis are not in conformity with the country's constitutional law. Shortly prior to the expiry of the transition period, new provisions for determining the tax base for Austrian real estate transfer tax purposes entered into force as of 1 June 2014.
Consideration – fair market value of real estate
As a general rule, the consideration for the transfer of real
estate serves as the tax basis for Austrian real estate transfer
tax purposes. However, in case there is no consideration (eg in
case of a transfer mortis causa), if the consideration
cannot be determined or if such consideration is lower than the
real estate's fair market value, then the prevailing fair
market value of the property will be the basis for the Austrian
real estate transfer tax, thereby serving as some kind of minimum
tax basis.
As a result, transfers of Austrian property effected without any
compensation to a non-family member will trigger an increased real
estate transfer tax burden. This inter alia applies to the
contribution of real estate by a shareholder to its subsidiary
without effecting a capital increase.
Intra-family transfers
In case of a mere intra-family transfer, the threefold of the
special tax value (Einheitswert) of the real estate
concerned forms the tax basis for the 2% Austrian real estate
transfer tax. The special tax value (even if multiplied by three)
is in general substantially lower than the prevailing fair market
value of the property concerned. Such reduced tax basis applies
irrespective of whether the intra-family transfer is effected with
or without any consideration. In case of the transfer of
agricultural or forestry real estate, the tax basis amounts to the
simple special tax value (without being tripled).
The term "family" in particular includes spouses,
registered partners, children, grandchildren, and (under specific
circumstances) life partners.
Such reduced tax basis also applies in case of an indirect
acquisition of real estate by acquiring or consolidating all shares
in a company owning Austrian real estate on the level of one
acquirer (or within the hands of companies forming a VAT tax
group).
Transfer of real estate in the course of reorganizations
Generally, the amendments of the tax basis for the transfer of Austrian real estate will not have an impact on reorganizations within the scope of the Austrian Reorganization Tax Act (Umgründungssteuergesetz) in the course of which Austrian real estate is transferred. Unless such reorganization leads to a consolidation of all shares in a company owning Austrian real estate on the level of one party involved, the tax basis for such real estate transfer will still amount to twice the special tax value of the property concerned. If an agricultural or forestry property is transferred in the course of a reorganization within the scope of the Austrian Reorganization Tax Act, the simple tax value will apply.
Private foundations
In case of a compensation-free transfer of real estate by a
donor to a private foundation (Privatstiftung), the tax
basis amounts to the fair market value of the real estate
transferred, thereby making contributions to a private foundation
more expensive. The applicable real estate transfer tax rate in
this scenario amounts to 6%. Furthermore, the distribution of real
estate by a private foundation to a beneficiary triggers a 3.5%
real estate transfer tax that is also based on the fair market
value of the real estate transferred.
The new rules on determining the tax basis are applicable on
transfers occurring after 31 May 2014. Specific transitional
provisions may provide relief. The new tax basis for transfers of
agricultural or forestry real estate will enter into force as of
the expiry of the existing regime on 31 December 2014. Whether the
new rules are in conformity with Austrian constitutional law
remains a contentious issue.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
