AUSTRIA Law and Practice

Contributed by: Markus Fellner, Florian Kranebitter and Florian Henöckl, Fellner Wratzfeld & Partners

evidence sufficient substance of the underlying agreement.

Attention should also be paid to capital gains tax (Kapitalertragsteuer) with regard to gains distributed to the SPE’s shareholders, and to corporate income tax under Austrian law.

See 2.1 Taxes and Tax Avoidance

As outlined in 2.1 Taxes and Tax Avoidance, the sale of receivables is, in general, exempt from Austrian VAT. VAT may be imposed on factoring services through the purchaser (eg, regarding collection services); however, no factoring services are usually provided in a true sale securitisation, if the seller continues to collect the receivables on its own.

See 2.1 Taxes and Tax Avoidance.

Usually, all the above-mentioned tax-related issues in regard to securitisation transactions are covered in legal opinions, such as the potential application of income taxes, withholding taxes and stamp duties, as well as the general tax treatment of the SPE and potential VAT on the transfer of receivables and provided services.

Under Austrian law, there are no specific accounting provisions regarding securitisation. However, if an entity is controlled by another company, the Austrian Commercial Code

(Unternehmensgesetzbuch) requires a joint and consolidated financial statement. Such a controlling influence derives, for instance, from a majority of votes. Furthermore, significant influence may also arise from a shareholders’ agreement. In this case, the International Financial Reporting Standards (IFRS) must be taken into account as well (eg, based on the “power of disposal and return” approach, it is checked whether the parent company can significantly influence the returns of the SPE).

As mentioned, an SPE should be isolated from the originator or at least a structure should be chosen in which there arises no such controlling influence. If the SPE is under the control of the originator, investors should be aware of the aspect of consolidation obligation with regard to their risk management.

As outlined in 3.1 Legal Issues With Securitisation Accounting Rules, there are no specific mandatory national accounting provisions regarding securitisation transactions. Moreover, accounting analysis is typically undertaken separately from the legal analysis.

EU Regulation No 2019/876 (CRR2)

CRR2 was published on 7 June 2019 in the Official Journal of the EU as an amendment to the former Capital Requirements Regulation 575/2013 (CRR) and introduced an array of essential changes, which had already been part of the Basel III standards. As part of the frame-