Ministry of Finance on Nova Iberomoldes: Austrian RETT may not apply to certain restructurings

Overview

In its information dated 29 July 2026, the Austrian Ministry of Finance (MoF) comments on the impact of the CJEU judgment in Nova Iberomoldes (C-837/24) on Austrian real estate transfer tax (RETT). The focus is on the question of when the Capital Duty Directive precludes taxation under the Austrian RETT Act. The CJEU recently held that the Portuguese taxation of certain acquisitions of shares in real estate-owning companies may be contrary to EU law if the transaction qualifies as a restructuring within the meaning of the Capital Duty Directive. For Austrian practice, this is particularly relevant for share consolidations and changes in shareholders in the course of restructurings that trigger RETT. The MoF information provides important clarifications in this respect, but leaves delimitation questions open for transactions and legal forms that are not expressly covered.

What does the Capital Duty Directive regulate?

The Capital Duty Directive harmonises the levying of indirect taxes on contributions of capital to certain corporations and, in particular, prohibits indirect taxes on restructurings. According to CJEU case law, this prohibition may also cover real estate transfer tax. Under Article 4(1) of the Capital Duty Directive, restructurings include in particular, under point (a), the contribution of all assets of one company to another capital company and, under point (b), the acquisition of shares conferring a majority of voting rights. In each case, the condition is that securities representing the capital of the acquiring company are granted as consideration. By contrast, taxes on transfers of ownership in the case of a transfer of civil-law ownership, such as a contribution in kind of real estate, as well as the mere purchase of shares in a real estate-owning company, are not covered.

In the underlying case, the share capital of the newly established Portuguese public limited company Nova Iberomoldes was paid up by way of a contribution in kind by its sole shareholder. In return, that shareholder received all securities representing the capital. The contribution in kind included a 100% shareholding in a real estate-owning company with immovable property located in Portugal. Under Portuguese tax law (“IMT”), the acquisition of at least 75% of the shares in such companies was subject to Portuguese real estate transfer tax.

The CJEU classified the contribution in kind as a restructuring within the meaning of Article 4(1)(b) of the Capital Duty Directive. Since no indirect taxes may be levied on such transactions, the Portuguese rule triggering real estate transfer tax is, in the CJEU’s view, contrary to EU law.

Which restructurings are affected by RETT according to the MoF?

According to the MoF, in the case of Austrian corporations within the meaning of Article 2 of the Capital Duty Directive – at least AG, GmbH and SE – certain transactions are to be classified as restructurings within the meaning of Article 4(1) of the Capital Duty Directive if, at the level of the acquiring corporation, an acquisition transaction within the meaning of the Austrian RETT Act is triggered, namely a change in shareholders pursuant to Section 1(3)(1) of the Austrian RETT Act or a share consolidation pursuant to Section 1(3)(2) of the Austrian RETT Act.

According to the MoF information, this may include:

• contributions of a capital interest in a real estate-owning company outside the Austrian Reorganisation Tax Act,
• down-stream and side-stream contributions of a capital interest in a real estate-owning company or of a business or part of a business holding such a capital interest,
• down-stream and side-stream demergers of a capital interest in a real estate-owning company or of a business or part of a business holding such a capital interest,
• side-stream mergers involving a capital interest in a real estate-owning company as part of the assets,
• diagonal intra-group transactions, for example contributions or demergers of a capital interest in a real estate-owning company to aunt/niece companies,

provided that shares in the acquiring corporation are granted in each case.

In the case of a share consolidation, the majority of voting rights will generally be transferred or reached, so that Article 4(1)(b) of the Capital Duty Directive will apply. If this is not the case, the MoF states that the applicability of Article 4(1)(a) of the Capital Duty Directive must be examined. According to the MoF information, it is irrelevant whether new or already existing shares are granted; the application of the Austrian Reorganisation Tax Act is also not decisive.

When does RETT not apply according to the MoF information?

For practical purposes, this statement is particularly significant because it has direct implications not only for the substantive assessment but also for the handling of specific cases. Due to the primacy of EU law, the CJEU judgment and the Capital Duty Directive must be observed directly.

If a transaction is clearly to be classified as a restructuring within the meaning of the Capital Duty Directive according to CJEU case law, the tax offices must, according to the MoF, assume that no RETT liability arises. If the requirements stated by the MoF are clearly met, no self-assessment or tax return for the transaction is required.

For other transactions and legal forms than those expressly mentioned, however, the MoF considers the legal position not yet sufficiently clarified. In these cases, RETT must continue to be self-assessed or levied.

If a self-assessment was made before publication of the CJEU judgment and, according to CJEU case law, the transaction clearly qualifies as a restructuring within the meaning of the Capital Duty Directive, an application for assessment may be filed within the time limits of Section 201 of the Austrian Federal Fiscal Code. If an assessment notice has already been issued, an appeal or an application for revocation pursuant to Section 299 of the Austrian Federal Fiscal Code may be considered within the applicable open period.

Conclusion

The MoF information provides a significant clarification for Austrian real estate transfer tax: certain restructurings that clearly fall within Article 4(1) of the Capital Duty Directive do not trigger RETT despite the existence of a taxable event under Section 1(3) of the Austrian RETT Act. According to the published legal view of the MoF, this applies at least to AG, GmbH and SE and, in particular, to certain cases of share consolidation and changes in shareholders, provided that shares in the acquiring corporation are granted.

The MoF information, however, does not address Article 3 of the Capital Duty Directive, which defines certain transactions as "contributions of capital" (such as increases in the assets of a company through contributions made without the granting of shares, but instead in exchange for certain shareholder rights. Pursuant to the Capital Duty Directive, no indirect tax may be levied on such transactions either.