No tax liability in Austria for assignments abroad lasting several years

For years, a taxpayer had reported to his parents' main residence in Austria (an apartment) and had at least had a private room there before his departure abroad. From October 2011 to the end of June 2015, he was sent abroad by his employer - in fact, the deployment was even scheduled to last until the end of September 2017.

For the duration of the posting, the taxpayer earned income from non-self-employed work abroad and established a place of residence abroad. Nevertheless, the Austrian tax authority was of the opinion that, despite the move abroad, the place of residence (with his parents) in Austria had remained unchanged and that the center of his life interests had not been moved abroad. Even if during his absence his sister used the apartment and he himself had only a right of co-occupancy over the apartment as part of any visits to Austria.

The BFG had (GZ RV/7105019/2019 dated 15.9.2025) been concerned with the question of whether in the present case a residence in Austria – specifically in the apartment rented by the parents – exists that justifies the (unlimited) tax liability in Austria for the son working abroad. The question of contractual residence with unlimited tax liability in several countries was not addressed at first.

Following previous UFS/BFG case law, premises must be equipped in such a way that they are suitable as a dwelling, allowing people to stay there not only for a very short period of time. The ability to sleep, take care of personal hygiene, prepare food, and store personal belongings must be guaranteed. Although it was always possible for the taxpayer to temporarily stay in their parents’ apartment during a visit to their home, the BFG decided for several reasons that there was no tax residence in Austria for them.

The mere sharing of a bathroom, kitchen, toilet, living room, etc. in the parents’ home is not sufficient to accept a flat as a place where an autonomous lifestyle is usually possible. After all, a room cannot be used as an apartment without its own bathroom or cooking facilities. Furthermore, there was a lack of legal and actual control over the apartment, and thus of ownership of an apartment – only by leaving a room available for occasional overnight stays could this not be justified. Not least, contrary to the BFG’s position, any experience of life, given the duration of the foreign assignment of more than three years, would not justify maintaining one’s residence in the parents’ rented apartment. In the end, neither residence nor habitual residence were present in the disputed period in Austria, which meant that there was neither unlimited nor limited tax liability for the foreign income.

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