ESTABLISHMENT OF A BRANCH OF A FOREIGN COMPANY
On our website pages, we invite all the interested to get acquainted with some of the legal and tax aspects of Austrian law.
This is a brief description of the legal forms of legal entities in Austria and useful information about the establishment of a company in Austria, basic taxation, important administrative and legal issues that must be considered, when making investments in Austria.
All information is brief and generalized, and therefore, when making decisions, it cannot replace qualified specialists‘ assistance.
Note: The information contained on our website may be changed, due to improvements and additions to the current legislation of Austria, as well as the adoption of decisions of the highest judicial authorities, or as a result of the law enforcement practice of the authorities, therefore, it is necessary to get direct advice from competent specialists. For this reason, we disclaim responsibility for the accuracy of the information provided on the website.
GENERAL CONSULTING ON THE TOPIC “AUSTRIA”
Austria, located in the very heart of Europe, with the best connections to the West and the East, is politically and economically stable. It is known as one oft he leading companies of a consumer interest. Favorable taxation, abcense of property tax or industrial tax, the possibility of discounts and much more attractive features play a big role, when making the decision for investors and businessmen.
OK Projekt & Verwaltung GmbH provides support to clients in such matters as:
- Establishment and registration of companies and representative offices in Austria
- Holding in Austria
- The right to reside in Austria
- Acquisition of rights to immovable property by foreign citizens
- Additional costs when buying a property in Austria
BUYING REAL ESTATE, BUSINESS AND RESIDENCE IN AUSTRIA – how are these concepts interrelated?
Here we offer you a link for download, containing a brief information on this topic:
ACQUISITION OF RIGHTS TO THE REAL ESTATE PROPERTIES BY FOREIGN CITIZENS
RIGHT TO PURCHASE A REAL ESTATE OBJECT
If a foreign citizen acquires ownership or a share in the ownership of real estate (land, house, apartment), he needs to obtain a special permission from the local authorities (regional government bodies, who is in charge of real estate properties).
Exceptions are EU citizens, members of the countries that have EEC contracts or EWRs, which are equal in this respect to Austrian citizens.
Therefore, it is necessary to obtain a permission to purchase a real estate only for citizens from the so called third countries.
Each federal state of Austria has its own legislation on the sale of real estate, which regulates the acquisition of real estate by foreigners, and some federal lands have more strict requirements than others.
For example, according to the provisions of Article II §10 GVG 2001 of the federal state of Salzburg, restrictions on foreigners acquiring real estate lose their meaning, provided that the legal right to acquire by individuals and legal entities or partnerships occurs within the framework and under the terms of the European Community (EU), in particular EEC contract or EWR agreement for:
- free service exchange services
- persons with a residence permit, etc.
And this is in accordance with §12 (GVG 2001)
if the subject of the transaction will serve as an object for locating a production or enterprise for a long term or its expansion;
the subject of the transaction will serve the foreigner as housing for holidays in a region that has such special accommodation (for example, ski resorts, thermal waters, etc.) (§30 para. 1 Z 9 ROG 2009);
if there are special public interests: eg. state-political, national-economic, regional-economic, socio-political or cultural;
the subject of the transaction is necessary for an obtaining of the permanent residence, provided that the foreigner was not deprived of Austrian citizenship anytime before(§§33 or 34 laws of citizenship in 1985); this also applies to spouses; or
The subject matter of the transaction is necessary for the expansion of an existing residence or an existing enterprise and the acquired object is located in close proximity to the main object. It may be additional parking, garden, access to the house, etc.
In this context oft he law on the sale of land, the following groups of people are considered to be foreigners :
persons who are not citizens of Austria;
legal entities whose legal address is outside of Austria;
legal entities whose legal address is in Austria, but foreign participation prevails in them;
societies and associations in which, the majority of participants eligible to vote are foreigners;
private funds, the beneficial purchasers of most of the property of which are foreigners.
Permits are usually issued if cultural, social or national-economic interests are realized as a result of a sale and no damage is caused to the state.
The real estate agent conducts a preliminary viewing of an object with the client, collects information on the object and controls all the documentation. Then he makes a preliminary purchase agreement. This is the so-called agreement of intent. From it follows that the buyer is ready to purchase a proposed object. In this preliminary contract, the buyer can indicate his price for the object and, if necessary, some additional conditions, then he signs this contract. If the seller agrees with him, then he also signs the contract. If the parties don’t agree on the conditions, listed in the preliminary contract, then the discussion goes further, till both parties meet the agreement. After the preliminary contract has been signed from both sides, all the documentation on an object is transferred by a real estate agent to the lawyer.
The lawyer opens a special trust account in the bank in the name of the buyer and the trustee person.
The buyer transfers the entire amount, needed fort he purchase of an object, to this trust account. This ammount also includes the money for additional expenses.
Money from this account will be transferred to the buyer’s account only after the registration of the new owner in the official register of the owners. If there were loans on the property, then the object is first released from debt, i.e. the lender gets the money first. And the seller gets only the remaining amount. The new owner receives the object, as a rule, without a debt.
After the money has been transfered to the account, the day of signing the sales contract is set.
After signing the contract, a lawyer begins the registration of a property. He, if it is necessary, makes a request to the commission on land relations with foreigners for a purchase permission. The review procedure can last from 3-4 weeks to 3-4 months.
After all the formalities are completed, the object is transferred to the property of a new owner.
ADDITIONAL EXPENSES, LAW ON THE REAL ESTATE MANAGER ACTIVITY AND COSTS
While registering a property to the ownership, the following expenses are approximately expected:
transfer tax: 3.5%
registration fee: 1.1%
legal services (lawyer and notary), duties, certification, stamps, conclusion of the commission on land relations with foreigners (it depends on a federal land) approx. from 1.0% to 2.5% + 20% VAT *
broker’s provisions: 3% + 20% VAT *
* if the buyer is a legal entity, VAT is refunded
REGULATIONS GOVERNING DEFINED TYPES OF ACTIVITY.
WORKING ACTIVITIES IN AUSTRIA
In order to carry out certain types of activities in Austria, it is necessary to obtain a special permit to maintain the relevant sector of the economy. Confirmation that it is necessary to obtain permission to carry out the relevant types of activities is an extract from the Register of types of professional activity.
THE FIELDS OF PROFESSIONAL ACTIVITIES
The 1994 Law on the Sectors of Professional Activity defines the professional sector as an independent, regular activity, which is carried out with an intention of achieving economic profit.
The Law on the branches of professional activity does not include activities that are regulated by other laws (for example, banking, insurance, legal and medical activities).
Holding companies, as a rule, do not need to obtain permission to carry out professional activities in Austria.
The fact that a professional activity is carried out must be registered with an appropriate authorized local authorities.
The 1994 Law on the Sectors of Professional Activity distinguishes between free and regulated professional activities.
For the implementation of a regulated professional activity, you must provide a certificate of a professional fitness for such activities. This is an evidence that a person intending to engage in this kind of activity possesses the knowledge, skills, abilities and experience necessary to engage in this type of activity.
Enterprises that intend to engage in several activities are required to obtain several permits.
For example: an investment consultant also deals with insurance services and mediation in the field of real estate sales, as well as advises on export issues.
The investment consultant in this case must have a permit to carry out investment advisory activities, a permit to carry out intermediary activities in the field of insurance services and the purchase and sale of real estate, as well as to act as an export consultant.
Since the first three types of professional activities relate to regulated activities, for all these three types of activities it is necessary to obtain appropriate certificates of professional competence. As for the export advisory, this is a type of free professional activity and no additional certificate of professional competency is required here.
A LEADER, WHO IS AUTHORIZED TO CARRY OUT DEFINED TYPES OF ACTIVITIES
Permission to conduct professional activities can be issued both to companies, formed on the merger of capital, partnerships and limited partnerships, as well as tot he branches of foreign companies in Austria.
To do this, it is necessary to take in a director, living in Austria, who will be responsible for the implementation of all regulatory requirements in the framework of a realization of a particular type of professional activity.
If a certificate of professional fitness is required for a given type of activity a company performs, the director must provide such a certificate.
The production director can also be the executive director of the company. The executive director can also be another person whose working employment in this company is at least 20 hours per week.
PERMISSION FOR THE MANAGEMENT OF CERTAIN TYPES OF ACTIVITIES FOR FOREIGN CITIZENS
Unless otherwise defined in the law on professional occupations, foreign citizens may conduct professional activities in Austria on the same rights as Austrian citizens and may be appointed production directors, if this is provided for by relevant international agreements.
Third-country nationals who do not yet have permission to reside in Austria and intend to engage in professional activities in Austria must first obtain the necessary permission to reside in the country.
Legal entities that are not registered and do not have their branches in Austria do not have the right to conduct professional activities in Austria, unless otherwise provided in the law.
BRANCHES OF FOREIGN COMPANIES. HOLDERS.
Companies, which are located abroad and correspond to an Austrian limited liability company or joint-stock company, can establish their branches in Austria.
A possible advantage of establishing a branch, compared with the establishment of a subsidiary, is that the establishment of a branch does not entail significant expenses on paperwork, special administrative and management costs and the costs of vesting the company with authorized capital.
The disadvantage, in comparison with the establishment of a subsidiary, may be that the branch is not an independent legal entity. A foreign company will remain the carrier of the rights and duties of the branch.
Transactions that must be made to carry out the activities of a branch in Austria must be made only on behalf of a foreign company and entail rights and obligations exclusively for a foreign company.
When registering a branch, you must provide proof of the existence of a foreign company that registers the branch.
The application for registration of a branch is attached to a contract on the establishment of a foreign company in the current edition, as well as a certificate of registration of a foreign company.
Documents must include apostilles and a certified translation into German.
Information on a foreign company, establishing a branch, is entered into the Register of Enterprises, and documents are provided on the organizational and legal forms, the registration authority, the size of the authorized capital, the names and representative powers of the managers of the foreign company.
When registering a branch, the application shall indicate its name, address, arts oft he activities the branch is offering, as well as the name and date of birth of the permanent representative.
Companies registered in non-EU or EEA member states are required to appoint a permanent representative who will have the authority of a permanent legal and non-judicial representation of a foreign company. Such powers should apply to all fields of abranch.
The Permanent Representative is obliged to keep records of activities of a branch, carried out in Austria.
A permanent representative must have a permanent seat in Austria.
Foreign societies located in the EU or EEA countries may appoint a permanent representative at their discretion.
HOLDING COMPANIES IN AUSTRIA
Austrian law does not provide a special legal form or special organizational and legal norms for the establishment of a holding company.
Therefore, a holding company can be established as a society of any kind.
Holding companies have tax advantages in Austria.
- single corporate tax 25%
- no fishing/hunting tax
- minimization or absence of tax from the source of income on the basis of agreements to avoid double taxation (in most cases)
- a significant number of concluded tax agreements (more than 70)
- absence of the rules for determining the low cost
- no business tax related to foreign countries
In addition, the taxation system of a group of enterprises and a preferential international taxation system for participation in foreign enterprises in terms of taxation of international concerns opens up particularly interesting prospects.
The taxation of the group creates, along with the tax combination of the contracts in Austria, the possibility of using (offsetting) the losses of both Austrian and foreign subsidiaries.
When acquiring a share in Austrian business companies, the possibility of a partial write-off of the value of a share is provided, in case if that that share is in the enterprise that carries out the production.
Another positive aspect is the possibility of writing off the costs for paying the percentages of interest to third parties, if the acquisition of participation in Austrian and foreign subsidiaries was carried out, using the funds borrowed from these persons.
Thus, it is not only by chance that Austria has an international reputation as a favorable location for holding companies of any kind.
DIRECTOR – THE EXECUTIVE BODY OF THE COMPANY
The head oft he company is its representative, who manages its current activities in accordance with the law and the decisions of the founders.
The head of the company can be any individual (or several individuals). In the case, when there are several managers, the law allows a joint representation of the company (collective management).
The memorandum of association may provide for the representational powers of each of the directors or a combination of personal and collective powers. Representation includes judicial and non-judicial representation of the company.
The powers of the manager to represent the company in relations with third parties cannot be limited.
The powers of the head may be limited in the internal relations of the company only by the constituent contract or the decision of the founders. Violation of such restrictions by a company’s head leads to his responsibility to society.
Any capable physical person can be appointed as the head of a limited liability company.
Austrian citizenship is not required, if a person resides in Austria. When a person is appointed as a director, who does not have citizenship of one of the countries of the European Union (EU) or the European Economic Area (EEA), he must have the right to reside in the country, since it is assumed that he will stay in Austria for a long time.
The appointment of a legal entity as a head of a limited liability company is not allowed.
The head is appointed by the decision of the founders, certified by a notary.
By the decision of the a general meeting of founders, the head may be dismissed at any time, without giving reasons. The head of the company also has the right to declare his resignation at his own request.
If one (or several) founders of a company are appointed by the head, such an appointment is possible already at the stage of signing the memorandum of association. The dismissal of such a founder may occure due to the certain significant circumstances.