Tax & Legal News in English November 2025

Loss offset for private foundations

In a recent ruling (BFG 27.5.2025, RV/7102634/2023), the Tax Appeals Court ruled that losses from the sale of real estate can be offset against income from renting and leasing at the level of a private foundation. An appeal has been lodged against the ruling with the Administrative High Court, therefore final confirmation is still pending.

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Year-end tax tips for small and medium enterprises 

As the year 2025 draws to a close, a number of topics should be considered to optimize the tax position of small and medium enterprises. The Austrian tax law contains several tax incentives (especially for investments), which can be utilized until the end of the year. For small business, additional tax reliefs are available under certain circumstances.

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Social Security Classification of the “Mitarbeiterprämie 2025”

The legislation regarding the Austrian “Mitarbeiterprämie 2025” introduces new challenges for employers. Unlike previous bonus schemes, the “Mitarbeiterprämie 2025” is not exempt from social security contributions and ancillary wage costs, even though it remains tax-free up to EUR 1,000 per employee per year. The bonus is subject to social insurance, payroll levies (DB, DZ, BV), and municipal tax. Its classification as a special payment or regular remuneration depends on whether recurring payments of the “Mitarbeiterprämie” are intended. For marginally employed workers, it does not trigger full insurance if treated as a special payment. Employers should document payment terms carefully to ensure compliance.

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ECJ Opinion: Double taxation of intra-community acquisition in the case of the incorrect invoicing of VAT?

On 23 October 2024, the Administrative High Court submitted a request for a preliminary ruling to the General Court in Case T-638/24, Ra 2023/15/0003 (EU 2024/0004), regarding the question of whether incorrect invoicing of VAT on a zero-rated intra-Community supply precludes taxation of the corresponding double acquisition due to the use of the VAT-identification number of the country of departure in the same Member State. On 29 October 2025, the corresponding Opinion of Advocate General José Martín y Pérez de Nanclares was published.
In summary, it should be noted that, in the opinion of the Advocate General, the incorrect invoicing of VAT within the meaning of Section 11(12) of the Austrian VAT Act (UStG) for zero-rated intra-Community supplies in the Member State of departure of the dispatch or transport does not preclude the simultaneous taxation of the corresponding intra-Community acquisitions in the same Member State within the meaning of Article 3(8) second sentence UStG (double acquisition). It now remains to be seen whether the ECJ will follow this legal opinion.

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New Social Security Agreement between Austria and Japan 

The new agreement for social security between Austria and Japan does not only stipulate rules that might ensure international assignments between those jurisdictions are easier to handle from a social security perspective. It also incorporates new structures and ideas into such agreements such as a specified definition of the term “assignment” and a different approach to handle local obligations avoiding possible triple insurance during an assignment to Austria. Furthermore, it allows an extension of the social security upon request by both, the employee and the employer and sets rules for sel-employed individuals as well.

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OGH on the Impact of Pending Criminal Proceedings on Limitation of Damage Claims

The Austrian Supreme Court (OGH), in its decision 4 Ob 156/24f dated 22 July 2025, clarified when the three-year limitation period for damage claims under Section 1489 Austrian Civil Code (ABGB) begins in cases parallel to criminal proceedings. The claimant alleged damages arising from the 2004 BUWOG privatisation. While the first-instance court upheld the limitation defence, the appellate court rejected it; the OGH dismissed the defendants’ revisions for lack of a substantial legal question.
The OGH reaffirmed that limitation starts only once the claimant has objective knowledge of damages, causation, and fault sufficient to file a coherent claim. Mere suspicions or early investigative results do not suffice, and the claimant’s duty to investigate must not be overstretched.
Crucially, the Court held that the filing of an indictment does not automatically trigger the limitation period. In the underlying case, the indictment was based on complex circumstantial evidence and did not deliver conclusive proof relevant for civil liability. The claimant, as an external party, lacked direct insight into the alleged misconduct.
The OGH emphasised that even well-resourced claimants are not obliged to “outpace” criminal proceedings by filing civil claims before substantial clarification of facts. The appellate court’s assessment that the limitation period had not expired was therefore considered legally sound.
The decision strengthens legal certainty in complex economic crime matters and underscores that the initiation of criminal charges alone is insufficient to trigger the civil limitation period under Section 1489 ABGB.

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“Gin” remains the exclusive name for alcoholic spirits 

The European Court of Justice ruled on 13 November 2025, that the term “gin” is exclusively reserved for alcoholic spirits containing at least 37,5% alcohol by volume and produced by flavoring ethyl alcohol of agriculture origin with juniper berries. Nin. Alcoholic beverages marketed as “gin”, even when labeled as “non-alcoholic” violate EU spirit drink regulations and may not use the protected name. This decision aims to prevent consumer confusion, uphold unfair competition and maintain product integrity within the alcoholic spirits market in the EU.

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