Unlimited tax liability for main residence exemption

The Primary residence exemption allows the Exemption from property income tax and thus the tax exemption of the proceeds from the sale of owner-occupied homes or condominiums, including the land. For this, the Main residence abandoned and the own home either for at least two years continuously or inside the last ten years at least five years continuously had served as their main residence. The BFG had decided (GZ RV/7105501/2016 of 16.5.2018) to deal with a case in which, referring to the continuous five-year use as the main residence, the exemption from the real estate income tax should apply.

In detail, one wanted Senior official of an international organization based in Vienna, who after working in Austria for several years moved to Australia with his family, claimed the said tax exemption. Although the five years of use The Flat in Austria unquestionably was, denied the Tax office die Liberation with reference to the Special tax situation of the senior official and Nigerian citizen. Senior officials with a "red identification card" enjoy in Austria - as well as e.g. Diplomats - special Privileges and immunities. Out tax-related View applies Special provisions ("Vienna Convention on Diplomatic Relations"), so that these persons, who neither Austrian citizens still in Austria permanently resident are, only with their domestic income according to § 98 of the EStG (i.e., within the framework of the limited tax liability) taxable Furthermore, Austria sees a Liberation of service allowances from the sending state. Income from third countries should not be taxed in Austria anyway, since the limited tax liability never the World income can include. As the VwGH had already expressed some time ago, Austria has waived in the case of these persons, on the basis of international treaties, his fundamental Law, whose tax all income - and that is Also Then, when these persons in the country Residence or their ordinary residence have. Therefore, it is limited tax liability despite residing domestically given and the corresponding provisions must be applied.

In its decision-making, the BFG emphasized that in the present case Austria has opted not to impose unlimited income taxation, and therefore a Lack of unlimited tax liability in Austria is to be assumed on the part of the former senior official. Without unlimited tax liability However, regulations that require unrestricted tax liability (such as the Primary residence exemption), not to be used. The senior official was not, however, fully liable to tax in Austria, since Austria has effectively abandoned the unlimited income tax. In other words, he can do not have a permanent residence in Austria, because he How one limited taxpayer to be treated and therefore In reverse neither domicile nor habitual residence nationally can have. In the end, the already paid real estate tax (the limited tax liability also covers income from the sale of private property) remained in place as a tax burden - the Headquarters exemption did not apply.

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