On October 15th, 2020, Ro 2019/13/0007, the Austrian Supreme Administrative Court rendered a decision with respect to the attribution of dividends paid by an Austrian limited liability company (LLC) to its legal Slovakian shareholder, which was a hybrid Slovakian partnership (S-KG) founded in 2007. The entire capital of the commercially active S-KG was held by an Austrian taxpayer who had transferred his LLC participation to the S-KG shortly after its foundation in 2007. Under Slovakian tax law, the partnership was treated as an opaque company and thus was granted tax exemption under the EU Parent-Subsidiary Directive for the LLC dividends. Onward distributions of the partnership to the Austrian taxpayer stayed tax exempt under domestic Slovakian tax law. However, due to the transparency approach applied by Austria, the LLC dividends could not be allocated to the Slovakian partnership, as this has been done under Slovakian law but had to be attributed to the Austrian taxpayer. The key issue that had to be decided by the Court and which forms the subject matter of this article is related to the question of whether the interest in the LLC was “effectively connected" with the trading business of the S-KG. In the affirmative, the taxpayer would have been exempted from tax under the Austro-Slovakian tax treaty. However, the Court decided to the contrary and held that the treaty’s “effectively connected requirement" cannot be interpreted in a way that it is fulfilled when an asset is part of the “mandatory business property" as defined under Austrian domestic law. Although there are arguments that may support the taxpayer’s view, the decision of the Court is in any case fully compatible with the global BEPS approach according to which tax treaties shall be interpreted in a way as to not create opportunities for non-taxation.
