On 29 July 2026, the Austrian Ministry of Finance (BMF) issued an information addressing the effects of the CJEU ruling in the Nova Iberomoldes case (C-837/24) on Austrian real estate transfer tax (RETT). For details on the CJEU case, please refer to our newsletter dated 9 June 2026.
CJEU ruling
In the Nova Iberomoldes case (C-837/24), the CJEU examined the compatibility of the Portuguese real estate transfer tax with the directive concerning indirect taxes on the raising of capital (hereinafter directive). This directive prohibits indirect taxes, among others, on restructurings involving share transfers.
The case concerned a newly established public limited company (AG) formed by a contribution in kind of 100% of the shares in a company holding real estate located in Portugal. Due to a change in shareholders of at least 75%, Portuguese RETT was payable. The CJEU ruled that such a provision is incompatible with the directive.
Scope of Austrian RETT according to the BMF information
In response to this CJEU ruling, on 29 July 2026, the BMF published an information concerning the impact on the Austrian Real Estate Transfer Tax Act (hereinafter GrEStG). This BMF information covers restructurings within the scope of the directive provided that i) the acquiring corporation issues new shares and ii) a shareholder change or consolidation of shares concerning a company holding Austrian real estate has been triggered for Austrian RETT purposes. According to the BMF, it is irrelevant whether new shares are issued or existing shares are transferred. It is also immaterial/it is not essential whether the restructuring falls under the Austrian Reorganization Tax Act (UmgrStG).
According to the BMF, the following scenarios no longer trigger RETT due to shareholder changes pursuant to section 1 para. 3 subsec. 1 and consolidation of shares under subsec. 2 GrEStG:
- simple contribution of a capital interest of a real estate-holding company outside the scope of the UmgrStG;
- (down-stream and side-stream) contribution or de-merger of a capital interest of a real estate-holding company or of a (partial) business including a capital interest in such a company;
- (side-stream) merger where the transferring company’s assets include a capital interest in a real estate-holding company;
- corresponding “diagonal” transactions (e.g. contribution/de-merger of a capital interest in a real estate-holding company within a group between different shareholding chains at different levels, such as aunt/niece companies).
Procedural implications according to the BMF information
- For cases that the BMF classifies within the scope of the directive EU law applies directly. Therefore, a self-assessment or tax declaration is not required. We recommend in practice to document the underlying transaction accordingly.
- For cases for that a self-assessment has already been submitted, an application under section 201 of the Austrian Federal Tax Code (BAO) or a request for revocation under section 299 BAO can be filed.
- For all other transactions and corporate entities being not mentioned above in the information issued by the BMF, RETT shall continue to be paid or levied.
Concluding remarks on the implications
In general, the BMF interprets the scope of the CJEU decision broadly, covering not only the downstream transactions as discussed/covered in the CJEU case but also side-stream and diagonal side-stream transfers.
However, a significant limitation to the scope of the BMF information is the requirement that, according to the BMF, new shares must be issued by the acquiring company, or existing shares must be transferred. This has a considerable impact, in particular for intra-group transfers where the transfer of shares is often waived. Nevertheless, in individual cases, there may still be a line of argumentation and reasons to apply the directive and thus could qualify for a RETT exemption.
We are happy to assist you in analysing your specific situation and determining the appropriate procedural approach.
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