Hämmerle v Appellate Commission of Vorarlberg

JurisdictionAustria
CourtAdministrative Court (Austria)
Austria, Administrative Court.
Hmmerle
and
Appellate Commission of the Finance Department of Vorarlberg.

International law Relation to municipal law Interpretation of double taxation agreement Agreed interpretation communicated to tax authorities in ministerial instructions Whether agreed interpretation binding on municipal courts Double Taxation Agreement between Austria and Switzerland, 1953 The law of Austria.

Treaties Special kinds of Double taxation agreements Interpretation of Agreed interpretation communicated to tax authorities in ministerial instructions Whether agreed interpretation binding on municipal courts Double Taxation Agreement between Austria and Switzerland, 1953 Regular frontier travellers The law of Austria.

Summary: The facts.Article 7 (5) of the Double Taxation Agreement of 12 November 1953 between Austria and Switzerland provides that income derived from paid employment by persons who are resident in one of the two countries in the vicinity of the frontier, whose place of employment is in the other, and who visit the latter on every working day, are liable to tax in the country where they have their place of residence. Such persons are known as regular frontier travellers (Grenzgnger). By an agreement between the Austrian and Swiss tax authorities a regular frontier traveller was defined as a person who, as a general rule, returns every day to the country of his residence from his place of work. The agreement further provided that a person should only cease to be considered a regular frontier traveller if (a) he spent nights at his place of work on more than only isolated occasions, and (b) the reasons which caused him to do so were objective reasons, such as the need to do regular overtime work. The terms of the agreement were reproduced in an Austrian ministerial directive which was sent to all Austrian tax authorities.

The appellant was assessed to tax in Austria, on the grounds that the Swiss tax authorities had informed the Austrian tax authorities, allegedly as a result of their own independent investigations, that they recognized the appellant as a regular frontier traveller and therefore waived any right to tax him in Switzerland, and that the appellant had failed to show any objective reasons causing him to spend more than only isolated nights at his place of work in Switzerland. The appellant contended that he was genuinely resident in Switzerland and that the Double Taxation Agreement did not contain any provision...

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