Directive [EU] 2019/1158 on work-life balance for parents and carers requires changes in Austrian labor and social law. Against this backdrop, the Austrian Parliament passed in September 2023 corresponding amendments. Most of these legal changes will come into force on 1. November 2023. Thereafter, for example, the full parental leave until the child’s second birthday will only be possible in the future if both parents take at least two months of parental leave each. In addition, employers are to be required to provide reasons if they reject an employee's application for example for parental leave, nursing leave or part time nursing leave. Furthermore, the protection against dismissal for unlawful motive is to be extended. In addition, changes are made with regard to care leave.
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On 13 July 2023, the National Council and the Federal Council passed numerous bills, including the CESOP Implementation Act. The details have already been reported in the FSI Tax News Nr. 2/2023.
The first reporting by payment service providers to the CESOP portal must be made by 30 April 2024 and shall include records relating to the first quarter of 2024. The CESOP portal can be accessed via FinanzOnline and will be available for production submissions from 1 April 2024 onwards. The test environment is expected to be available for XML validation and for testing with the CESOP test environment from 4 October 2023 onwards. Payment service providers without a registered office or branch in Austria can register via online identification from September 2023 onwards. The link will be provided on the website of the Federal Ministry of Finance.
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With the Tax Amendment Act 2023, the former Capital Gains Tax exemption notification, which had to be submitted to the tax office as a written copy, is replaced by electronic data transmission between the credit institutions subject to withholding tax obligations and the tax authorities. Details with regard to the ministerial draft are reported in the FSI Tax News Nr. 2/2023.
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So far, the Austrian tax authorities could only issue provisional tax notifications if the uncertainty about the existence or extent of the tax liability arose from the factual sphere. Since the Tax Amendment Act 2022 (Abgabenänderungsgesetz 2022) provisional tax notifications can also be issued if the reason for the uncertainty of the tax liability is a matter of legal questions which is subject to a pending appeal procedure (e.g. tax deductibility of expenses). Based on this amendment we have already noticed an increase of “provisional” preliminary decisions on the appeal issued by the tax authorities, which did not enter into legal force/became final. This “provisional” preliminary decisions on the appeal were issued on the grounds that a (similar) question of law about the extent of the tax liability is in dispute in another proceeding of the same taxpayer. However, as soon as the uncertainty is resolved and the tax liability can be determined with certainty, the authorities are obliged to issue final tax notifications/final decisions on the appeal. Furthermore a “provisional” tax notification or decision on the appeal can only be declared final or replaced by a final tax assessment/decision on the appeal within statute of limitation. The statute of limitations for replacing a “provisional” tax assessment with a final tax assessment starts at the end of the year in which the uncertainty was resolved and ends at a maximum 15 years after the end of the year in which the tax liability arose. If there were no sufficient grounds to issue a “provisional” tax assessment (e.g. no reasonable uncertainty) according to case law of the Austrian Administrative High Court the statute of limitation starts at the end of the year the unlawful “provisional” tax assessment was issued. However, this rules of statute of limitations were so far only applicable on “provisional” tax assessments. If these rules are also applicable on “provisional” preliminary decisions on the appeal has to be clarified by case law of the Austrian courts
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The EU introduced a carbon border adjustment mechanism (CBAM), which aims to price the CO2 emissions resulting from their production process when importing energy-intensive products. CBAM is part of the European Green Deal and is intended to help ensure that the EU is climate neutral by 2050. By making imports of energy-intensive products more expensive, the risk of carbon leakage (movement of production to countries with less strict CO2 regulations) is contained. The following product groups are affected by CBAM: iron and steel, cement, aluminum, fertilizers, electricity and hydrogen. Importers who import these product groups after 1 January 2026 must purchase CO2 certificates to the extent of the amount of greenhouse gas emissions generated during production. The price of the CO2 certificates depends on the price of the EU ETS (EU Emissions Trading System), which certificates at the time the goods are imported. In the transition phase starting with 1 October 2023 importers of CBAM-products must quarterly submit a CBAM report which contains details about greenhouse gas emissions generated during the production.
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Due to the intended flexibilization of the new corporate form of the flexible company, in the future it will be possible to carry out transfers of FlexCo-shares without a notarial deed. Instead, the involvement of notaries public or lawyers is required in such a way that they draw up a certificate, check the transfer and inform the parties about the legal consequences.
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In its most recent decision 9 ObA 125/22f, the Austrian Supreme Court commented on the relation between the part-time employment of employees approaching retirement ("Altersteilzeit"), the granting of bonuses for performance and achievements, and the related calculation of any claims arising from a severance payment ("Abfertigung ALT"). In this context, particularly the questions were discussed as to what extent a claim to contractually agreed bonuses for performance and achievements is also due in the "free time phase" and how this could possibly affect the calculation of a severance payment claim. In particular in cases of current partial retirement agreements (“Altersteilzeitvereinbarungen”) for employment relationships with (non-collective agreement) bonus models, some changes may arise due to the most recent Supreme Court decision. Despite the far-reaching private autonomy, it is recommended to have current and planned partial retirement models (“Altersteilzeitmodelle”) checked for compliance with the current legal situation.
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Christoph Riegler and Madeleine Gruensteidl jointly head the editorial team of Deloitte Tax & Legal News which publishes more than 140 articles on Austrian and International Tax Law each year. Please feel free to contact them in case of any questions or remarks (redaktion@deloitte.at).