Government bill on the Tax Amendment Act 2022: Highlights tax procedure law

Overview

The Federal Ministry of Finance recently published the government bill for the Tax Amendment Act 2022 (AbgÄG 2022). Among other things, the bill provides for the implementation of EU-law requirements into national law, the creation of an international instrument that is intended to enable a joint assessment of cross-border taxation risks by several financial administrations concerned and measures to increase procedural efficiency. The most important planned changes to tax procedure law are presented below.

Admission of “online meetings” during tax procedure - Sec 48j Austrian Federal Tax Code (“BAO”)

The possibility to use suitable technical equipment (eg Zoom, MS Teams) for tax procedures (such as oral hearings, discussion dates, (final) meetings, reviews and tax audits), which was introduced temporarily due to the COVID-19 pandemic, is to be implemented in the Federal Tax Code for an unlimited period of time. However, there is no legal entitlement for the taxable person to use information technology during a tax procedure, it is rather exclusively at the discretion of the authority to offer it. In any case, tax authorities must ask the parties to disclose whether such technical equipment is available to them. If this is not the case, parties may request that the act (eg oral meeting) takes place physically. However, if no such request is made, the act may even be carried out in the absence of the taxable person; in doing so, the parties must be given an otherwise appropriate opportunity to exercise their rights or to cooperate in establishing the facts.

Multilateral risk assessment - Sec 118b BAO

The government bill provides for the introduction of a new international tool, which should facilitate a joint assessment and analysis of cross-border taxation risks by several tax administrations together with the concerned company. Sec 118b BAO lays the procedural basis for the participation of the Austrian tax administration in this OECD Programme. The Multilateral Risk Assessment shall be carried out on a voluntary basis and at the request of the taxable person. The core element of the procedure is the risk assessment report – this is intended to create an increased planning certainty for multinational groups and tax administrations.

VAT interest - Sec 205c BAO

The new Sec 205c BAO is intended to create a separate interest rate regulation for VAT, which implements the requirements postulated in the ECJ judgment (C-844/19) and the decisions of the Administrative High Court (Ro 2017/15/0035, Ro 2018/15/0026). The ECJ has stated that interest on VAT claims is required above all under the aspect of ensuring the EU-law principle of fiscal neutrality. The interest rate amounts to 2 % per annum above base interest rate, like interest according to Sec 205, 205a and 212a BAO.

Increase of procedural efficiency - Sec 183 para 3 in conjunction with Sec 270 BAO

The amendments to Sec 183 para 3 and Sec 270 para 2 BAO are intended to create measures to increase procedural efficiency as well as an obligation to promote proceedings. The new measure provides for a time limit on the requirement to take into account new facts, evidence and requests in the event of an oral hearing held with their closure within the meaning of Sec 277 para 4 BAO. According to the explanations to the government's bill, a breach of the obligation to promote proceedings (already) exists if there are no objective reasons why requests for evidence submitted in the proceedings could not have been submitted at an earlier stage of the tax procedure. However, requests for evidence submitted in the request for referral (“Vorlageantrag”) should in any event be regarded as timely.

No (monthly) grace period for rejection of applications for suspension of collection - Sec 212a para 2b BAO

The reason for the introduction of the new Sec 212a para 2b BAO is the practical experience of the tax authorities, according to which applications for suspension of collection were submitted even though an appeal was either not filed at all or the underlying notification did not show any liability. Against this background, the new provision of Sec 212a para 2b BAO now provides for grounds for rejection without a grace period for the payment of the tax. 

No application for annulment of procedural rulings - Sec 244 in conjunction with Sec 299 BAO

In its ruling (Ro 2019/13/0014), the VwGH stated that tax audit assignments pursuant to Sec 148 BAO can be appealed separately by means of an application for annulment of the decision pursuant to Sec 299 BAO, especially since such an application is not an extraordinary appeal. The new regulation of Sec 244 BAO now invalidates this decision and extends the exclusion of a separate appeal of procedural rulings (eg subpoena pursuant to Sec 91 para 4 BAO, tax audit mandate pursuant to Sec 148 para 4 BAO) to include the application of Sec 299 BAO.

Conclusion

The AbgÄG 2022 contains numerous changes in tax procedure law, which in particular provide for the creation of procedural basis for the implementation of EU-law requirements. Other changes concern measures to increase procedural efficiency, the non-granting of a grace period in the event of rejection of an application for suspension of collection and the permanent admission of “online meetings” during tax procedures. The final version of the bill is expected before the parliament’s summer recess.