Legal Updates

Cash-pooling-refund

The Supreme Court for Civil Matters recently ruled about (virtual) cash-pooling-contracts in connection with illegal refunds of capital contributions to shareholders. Cash-pooling-contracts aim at facilitating the planning and management of liquidity within a group. The admissibility of a cash-pooling-contract is among other reasons questionable, if there is foreseeable existential risk for the participating companies at the time of conclusion of the contract or if a participating company is prohibited to terminate the contract. The Supreme Court for Civil Matters has not specifically ruled on the admissibility of cash-pooling-contracts because the defendant was a third party. There is still no general obligation to inquire and assess about this issue for third parties, unless their suspicion is close to certainty (17Ob5/19p).

27. June 2019

About the timeliness of electronic filing

As in several other Austrian procedural laws, the calculation of deadlines in administrative matters varies depending on the means of filing. Due to an amendment (BGBl. Nr. 44/2019) to the Federal Administrative Court Law (Bundesverwaltungsgerichtsgesetz), submissions filed electronically with the Federal Administrative Court shall be deemed to have been filed timely, even if they are filed after office hours. As recently as in 2015, the Supreme Administrative Court ruled that if electronic submission were received on the last day of a deadline outside office hours, they could be rejected.

14. June 2019

Which country gets to keep it?

The tax liability of international managing directors plays an important role in the new Double Taxation Agreement (DTA) between Austria and Japan. The new DTA contains a provision, according to which also the income taxes of “governing bodies similar to managing directors” such as supervisory or administrative board members are subject to taxation in the country where the company is seated. The provision applies regardless of where the function is carried out. This is a departure from the previously applied place-of-work principle. However, the legislator states in the DTA legislative materials that this provision only applies to executives that hold an actual managing function in the country where the company is seated.

17. May 2019

Exclusion of suspensive effect

In a recent decision, the Administrative Court Vienna dealt with the question of suspensive effect of appeals. A ruling of an authority may not be implemented if an appeal has been filed. The authority may exclude this suspensive effect if the immediate implementation of the decision is in the public-interest (imminent danger). In the decision the public interest (expansion of public transport, cost increase, emission reduction and positive change in the gross national product) outweighed the interest of the individual (the requested minor change can no longer take place). (VGW-101 / V / 020/1504/2019, VGW-101 / V / 20/1505/2019 dated 18.02.2019).

19. April 2019

First ruling on Basic Payment Accounts

The Supreme Court for Civil Matters recently ruled about the so-called Basic Payment Accounts regarding two matters: Firstly, banks are not allowed to deny the application of consumers for the opening of a Basic Payment Account, if the consumer is not able to use all of the services, he is legally entitled to at his existing payment account. This is the case, if the existing account is blocked due to insolvency, seizure by a creditor or offsets of the bank. Secondly, the annual standard fee of € 80 must not only include all payment account services, but also ancillary services such as the renewal of the debit card due to a change of the name of the consumer or informing the consumer of denial of payment transactions. (9 Ob 76/18v)

5. April 2019