A preliminary contract is irrelevant for property income tax.

Since 1.4.2012 All are subject to Profits from the Sale of land Basically the Property income tax, unless a ground for exemption applies. In particular, the Primary residence exemption or the Manufacturer exemption In this context, considerable importance is attached. The legal regulations on real estate income tax came into force on April 1, 2012, whereby Real estate sales, which after this date to be completed, and subject to tax. Rebuilding, which after dem March 31, 2002 If purchased, a purchase price is included in the sale. Tax rate from 30% on the Capital gain to bear. For so-called old properties (purchased before March 31, 2002), the assessment basis for the real estate transfer tax is set at a flat rate of 14% des Proceeds from disposals Granted. The special tax rate of 30% results in a Tax burden from 4,2% from Proceeds from the sale.

Before Supreme Administrative Court (GZ Ra 2017/15/0098 from 3.4.2019) a case has now arisen in which Pre-contract about the Sale of a property before dem 1.4.2012 Completed The actual purchase contract, however, did not come into effect until after this deadline. Tax office assumed that the actual Purchase contract for the time of taxation significantly was and wrote the real estate income tax before. That BFG He agreed with this opinion. The taxpayer, however, argued that even in old regime of speculation tax based on the case law (VwGH GZ 87/13/0096 of 9 November 1988) of the Pre-contract for the time of taxation significantly It had been.

The VwGH prevailed now in his verdict in the end departing from this old jurisprudence. Significant for the Property income tax is that it? actual commitment agreement. Advance contracts are usually aimed at the future conclusion of purchase contracts and do not yet constitute a legally actionable and enforceable claim for the transfer of a property. Significant for the purposes of real estate income tax, the Transfer of economic ownership. Therefore, the VwGH further restricts any deviation between civil and economic property rights through its judgment. Falling apart from civil law and economic Property is only Even then to assume, If one Other When the civil law owner in particular Full control and use of the property or the possibility of unrestricted appreciation of value, and also the Asset reductions At Decrease in value must bear the burden. Since this Criteria in the design of a Pre-contract not met As things stand, the old case law of the VwGH on pre-contracts, which argues in favour of economic ownership, can no longer be applied.

The private land sale According to § 30 of the EStG, therefore not by a Pre-contract, but through the actual commitment agreement on the transfer of real property ownership, usually the Purchase contract, performed. This creates a Equal alignment with the property acquisition tax, In this case, the focus is also on the purchase contract and not on the preliminary contract.

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