Tax Legislation (Austria) Case

Date04 Febrero 1949
Docket NumberCase No. 25
CourtAdministrative Court (Austria)
Austria, Administrative Court.
Case No. 25
Tax Legislation (Austria) Case.

Annexation — Miscellaneous — Purported Annexation of Austria by Germany.

States — Continuity of — States of Austria Subsequent to Annexation by Germany.

State Succession — In Respect of Legislation — Annexed Territory Reverting to Independent Status — Re-emergence of Independent Austrian State — Non-Applicability of German Tax Laws — Concessions thereunder — Right to such Concessions after Re-emergence of Austria.

The Facts.—The appellants were exporters carrying on business in Austria. In 1944, When Austria was still part of Germany, they had exported goods to foreign countries and, by virtue of a Law applicable to the whole of Germany, including Austria, they had become entitled to certain tax concessions and allowances on the turnover represented by their exports. Having been unable to claim these concessions while Austria was still part of Germany, they claimed to set off the amounts represented by these concessions against assessments for tax made upon them by the Austrian revenue authorities after the reconstitution of the independent Austrian State.

Held: that, as Austria was not in law a successor State of the German Reich, the appellants were not entitled to set off concessions granted by German legislation against liabilities to tax arising by virtue of legislation enacted in and applicable to a reconstituted, independent Austrian State. The Court said:

“Doctrine and jurisprudence alike reject the view that the Republic of Austria is the legal successor of the German Reich. On the other hand, both doctrine and jurisprudence are of opinion that Austrian sovereignty continued to exist during the occupation of Austria by the German Reich, and that its exercise was merely in abeyance during that period. … In so far as concerns the law of taxation, Austrian sovereignty in matters of taxation applies, to the extent that German laws of taxation remain operative, to such events as occurred during the time of the German occupation, provided that these events are concerned with a type of liability to tax which is related to Austrian territory. This is due to the fact that the German enactments on taxation are provisionally operative as Austrian law and are to be applied as such by the Austrian revenue authorities. In this way these enactments, in so far as they delimit the internal sovereignty in matters of taxation, have undergone a change; they must now...

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