The Double Taxation Agreement between Germany and Austria (DTA-DE-AT) Has Recently been Amended.

The double taxation agreement between Germany and Austria (DTA-DE-AT) has recently been amended to the effect that Art. 13 para. 6 DTA-DE-AT has been repealed.

(6) In the case of a natural person who is in a contracting state was resident for at least five years and who is in the other ren contracting state has become resident, paragraph 5 shall not affect the right of the former state, in the case of shares in companiescompanies under its domestic laws in the person to tax capital gains up to their residenceto tax change. If the former contracting state taxes in the event of emigration of a natural person resident in that state the capital gain, then in the event of a later sale of the Shares, if the profit derived therefrom is in the other state is taxed in accordance with paragraph 5, that state shall, in determining of the capital gain as acquisition costs the amount to be based on what the former state at the time of Departure has accepted as proceeds.

There is no equivalent to this repealed clause in the OECD Model Tax Convention.

In order to adapt the DTA-DE-AT to the OECD Model Tax Convention and to avoid conflicts with domestic law (§ 27 para. 6 Ö-EStG and § 17 D-AStG and § 6 D-AStG), the only declaratory regulation was simply abolished. This is only a value linking provision that regulates the legal consequences of the application of exit taxation. However, the abolition does not abolish exit taxation in the event of emigration from Germany to Austria, as is falsely claimed. The aforementioned domestic regulations adequately regulate the value linking according to the understanding of the two countries’ legislators.

In our opinion, the abolition also gives the two legislators freedom in the application of exit taxation (such as the abolition of the minimum residence of 5 years).

A DTA does not restrict the application of German exit taxation in § 6 AStG anyway, at least according to German tax case law (BFH ruling of 16.04.2024, IX R 38/21, BFH/NV2024, 1221; BFH decision of 23.09.2008, I B 92/08, BFHE 223, 73, BStBl. II 2009, 524, under II.2.c). Taxation thus takes place in the last legal second of the unlimited tax liability of the emigrant (Häck in Flick/Wassermeyer/Baumhoff/Schönfeld, Außensteuerrecht, Lfg. 93, April 2020, § 6 AStG Rz 377). This is a purely internal German process. An opening clause in individual DTAs for the application of German exit taxation is not required.

German exit taxation is therefore applicable to Austria even though Art. 13 para. 6 DTA-DE-AT has been repealed. This is because this only abolishes a purely declaratory legal consequence regulation of exit taxation, which is absorbed by domestic regulations, not exit taxation itself.