In case of a sale of capital assets and derivatives which are subject to the special tax rate of 27.5 %, side costs from the acquisition (“ancillary acquisition costs”) must not be deducted if the capital assets and derivatives belong to the private (non-business) part of the income. Therefore, ancillary acquisition costs in the non-business area neither reduce a capital gain nor increase a capital loss in case of a sale. The connotation of the term "ancillary acquisition costs" requires interpretation and is not always entirely clear. The Tax Appeals has now clarified in its decision dated 31 December 2021, RV/7100922/2016, that the premium (agio) which is paid when acquiring shares is to be qualified as acquisition costs and not as ancillary acquisition costs and therefore affects the amount of the capital gain or loss.
An agio is understood as the difference between the issue price of a share and the nominal value of the capital relating to the share. For example, the amount that must be paid when acquiring newly issued shares in the course of a capital increase which is above the nominal value of the proportional share capital. In the case at hand, it was disputed whether such a premium falls under the definition of acquisition costs or if it is to be classified as ancillary acquisition costs.
The complainant claimed a capital loss from the disposal of shares in his income tax return 2013. When calculating the capital loss resulting from the disposal of shares (calculated as proceeds from the sale minus acquisition costs), a premium which was paid for the share was added when computing the acquisition costs. A loss from the disposal of capital assets can be offset against capital gains under certain restrictions.
When the tax office assessed the income tax 2013, it qualified the premium as ancillary acquisition costs and reduced the loss resulting from the sale of shares accordingly. Hereinafter, the taxpayer filed an appeal against this assessment.
The Tax Appeals Court allowed the complaint. In its argumentation it referred to some past judgments of the High Administrative Court, in which it was made clear that the term acquisition costs for all types of profit determination under Austrian tax law (therefore also for non-business types of income) is the same and corresponds to term as defined under Austrian company law. According to Austrian company law acquisition costs are defined as all those expenses which are incurred to acquire an asset. In the opinion of the Tax Appeals Court this definition also includes a premium which must be paid to acquire capital assets.
Further, the Tax Appeals Court argued that the qualification of a premium as an acquisition cost in the narrow sense is reasonable because the paid premium together with the nominal value of a share is the actual purchase price that is paid. By agreeing on a premium, it is achieved that the share price corresponds to the economic value of the share, while the nominal value of a share alone usually is not in line with the economic value of a share.
The appeal to the High Administrative Court was denied.
The rule that side costs are not deductible in connection with private capital assets must be interpreted narrowly and in accordance with the definitions under Austrian company law. According to the Tax Appeals Court, a premium paid for the purchase of shares does not fall under the term ancillary acquisition costs of the capital asset but is part of the actual acquisition costs. Considering that premiums often amount to a considerable sum, the clarification in the decision of the Austrian tax court decision is welcome.