Rückerstattung österreichischer Kapitalertragsteuer an ausländische Investmentfonds im Lichte der Kapitalverkehrsfreiheit

Non-Austrian investment funds receiving dividends from Austrian companies are subject to Austrian dividend withholding tax of 25 %. The investment fund can request a refund of a maximum of 10 % of the gross dividend from the Austrian tax authorities under the applicable tax treaty. As a requirement for the refund, the investment fund has to obtain a certificate of residence and needs to document in how far its investors are eligible for tax treaty relief in Austria. Walter Loukota examines in how far a full refund of withholding tax (exceeding treaty relief)
should be granted to foreign investment funds under the principles of the Treaty on the Functioning of the European Union. In two cases (Orange Smallcap of 2008 and Aberdeen of 2009) the European Court of Justice has dealt with the requirements of cross-border dividend relief for EU investment funds under the free movement of capital. In its recent judgment Santander Asset Management of May 2012, the ECJ confirmed that a full relief of withholding tax must be granted to foreign investment funds of other member states in a non-discriminatory manner. In light of the particularities of the Austrian investment fund system Walter Loukota analyses the expected impact of the EU developments on Austria and comes to the conclusion that a denial of full withholding tax refund to foreign investment funds could be discriminatory and, therefore, in breach of the free movement of capital.