Austria: New Info from the Austrian Ministry of Finance – Mutual Agreement Procedure and Arbitration Procedure

The new info from May 5, 2022 presents the current legal opinion of the Austrian tax author­ities with regard to bilateral MAP and AP. It provides an overview of the formal and substan­tive framework of these procedures in Austria and is designed as a guideline. This current information replaces the former info of July 24, 2019. For the first time, this information also contains explanations on the procedure according to the EU-BStbG.

Four legal institutions are available to avoid double taxation (free choice):

• Mutual Agreement and Arbitration Procedure under the DTA
• Mutual Agreement and Arbitration Procedure under the MLI
• Procedure under the EU Arbitration Convention
• Procedure under the EU-BStBG
   

Austria has implemented the Council Directive (EU) 2017/1852 on tax dispute resolution mechanisms in the European Union (EU-Streitbeilegungsrichtlinie) by means of the EU-Besteuerungsstreitbeilegungsgesetz (EU-BStbG), which is applicable as of the 2018 taxation period. The EU-BStbG provides for a binding dispute resolution in a two-stage procedure for intra-European taxation disputes arising from differences in the interpretation or application of DTAs or the EU Arbitration Convention (convention on the elimination of double taxation in connection with the adjustment of profits of associated enterprises, 90/463/EEC):

• Mutual agreement procedure – MAP (§§ 22 – 25 EU-BStbG)
• If necessary, subsequent arbitration procedure (§§ 32 – 65 EU-BStbG)
   

Procedures under the EU-BStbG are initiated by means of a dispute resolution complaint (Streitbeilegungsbeschwerde). The complaint must be filed within three (3) years from the date of receipt of the notice of assessment relevant to the double taxation. The application must be submitted together with the minimum information required under § 9 EU-BStbG.

The dispute resolution complaint in accordance with the EU-BStbG must be filed in both member states concerned. In Austria, this is the tax office for large companies. The dispute resolution complaint must be submitted electronically via FinanzOnline. The decision on the admissibility of the dispute resolution complaint must be made within six months of receipt (or receipt of the complete remedy of defects or receipt of complete additional information). If the MAP under the EU-BStbG has ended without agreement, the person concerned may submit a written request for the establishment of an arbitration tribunal within 50 days of receipt of this notice to launch the AP.

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