Banking package 2015/2016 | Austrian Anadi Bank

Customer information concerning the 2015/2016 banking package

The “banking package”, which is part of the 2015/2016 tax reform, provides changes to existing laws and introduces new laws. The banking package was announced on 14 August 2015 in the Austrian Federal Law Gazette (BGBl. I No. 116/2015) and comprises the following:

  • Introduction of the Act on the Register of Accounts and the Viewing of Accounts (Kontenregister- und Konteneinschaugesetz, KontRegG), which governs the establishment of a register of accounts and the transmission of account data to the register.
  • Introduction of the Capital Outflow Reporting Act (Kapitalabfluss-Meldegesetz), which provides for the introduction of a reporting duty of credit institutions with regard to larger movements of money (capital outflows and inflows) and also for the introduction of a reporting duty regarding inflows from the Swiss Confederation and the Principality of Liechtenstein, including the possibility of an anonymous one-off payment with the effect of obtaining exemption from penalty.
  • Introduction of the Common Reporting Standard Act (Gemeinsamer Meldestandard-Gesetz, GMSG), which means an extension of the automatic exchange of information in tax matters to include information concerning financial accounts.
  • Changes to the Banking Act (Bankwesengesetz, BWG) and the Fiscal Offences Act (Finanzstrafgesetz, FinStrG), envisaging extensive exceptions to bank secrecy.
     



As a matter of principle, these laws apply with regard to all customers, irrespective of their tax residence.

What goals are being pursued with the banking package?
 
  • Simple and rapid obtaining of account information in the process envisaged in tax law, in order to ensure uniformity of taxation.
  • Introduction of the global standard for the automatic exchange of information concerning financial accounts in tax matters, on the basis of Directive 2014/107/EU and the intergovernmental agreement of 29 October 2014.
     
Introduction of the Act on the Register of Accounts and the Viewing of Accounts (Kontoregister- und Konteneinschaugesetz, KontRegG)
Register of accounts

With the Act on the Register of Accounts and the Viewing of Accounts, a central register of accounts has been set up for private individuals and for companies at the BMF (Bundesministerium für Finanzen, Austrian Federal Ministry of Finance). All banks are obliged to report data to the central register of accounts on an ongoing basis.

What accounts will be reported?
  • Accounts in deposit business (this also includes savings accounts) and in giro business.
  • Accounts in home savings business.
  • Custody accounts in custody business.
     
What data will be included in the report?
  • Account number and custody account number (including those for password-based savings accounts).
  • Date of opening and closing of the account or custody account.
  • Name of the credit institution.
  • In the case of natural persons, the sector-specific personal identifier for tax purposes (bPK SA*), or, if this information cannot be transmitted, the name, address and country of residence of the natural person in question.
  • In the case of legal entities, the identification code of the enterprise or a category allocated under the E-Government Act, or, if this information cannot be transmitted, the name, address and country of residence of the entity in question.
  • Persons with powers of representation for the account or custody account, trustors and beneficial owners.
     


Account balances and account movements are NOT included in this report.
For the first transmission, data as at 1.3.2015 must be transmitted. This also affects accounts and custody accounts which have been closed down since that date.

Who is able to inspect the register of accounts?

Inspection of the register of accounts is governed by law. Information can be issued to:

  • The public prosecutor’s offices and the criminal courts: for criminal law purposes.
  • The fiscal offence prosecution authorities and the Federal Finance Court (Bundesfinanzgericht): for purposes relating to fiscal offence law.
  • The tax authorities of the Federal Government and the Federal Finance Court, wherever expedient and appropriate in the interest of tax collection.
     
Is the tax office allowed to inspect the register of accounts in the context of the tax assessment of employees?

In the context of the assessment of income tax, corporation tax and value-added tax, the tax office can inspect the register of accounts if the tax authority has reservations concerning the correctness of the tax return and if it institutes investigation proceedings.

Such inspection of the register of accounts is to be reviewed internally within the tax office by an independent legal protection officer. In addition, the taxpayer must be given an opportunity to make a statement before the account inspection takes place. The assessment of the taxpayer’s statement is to be placed on record.

For the taxpayer’s protection, all inspections of the register of accounts are to be documented. The taxpayer has the possibility (via “FinanzOnline”) of viewing the account data that has been stored concerning him. The person affected is also informed via FinanzOnline if the tax authority inspects the register of accounts.

Inspection of accounts at the credit institution (account viewing)

A distinction is to be made between inspection of the register of accounts and direct inspection of an account. For the first time, the tax authorities are now able to obtain further information concerning assets (accounts, custody accounts) which is not available in the register of accounts. The request for information to the credit institution must be made in writing; it must include a statement of reasons and is to be signed by the head of the tax authority.

What preconditions have to be fulfilled for an account to be inspected?
  • There must be justified doubts as to the correctness of the details provided by the taxpayer.
  • It must be likely that the information obtained will be capable of clarifying these doubts.
  • It must be likely that the intrusion into the protectable confidentiality interests of the customer associated with the disclosure of information will not be disproportionate to the purpose of the investigation measure.
     

Requests for information from tax authorities or fiscal offence prosecution authorities must be approved by a judge of the Federal Finance Court in all cases.

Is the tax office permitted to carry out an account inspection in the context of the tax assessment of employees?

As is the case with inspections of the register of accounts, the inspection of an account for the assessment of income tax, corporation tax and value-added tax is only permissible if the tax authority has reservations concerning the accuracy of the tax return and if it institutes investigation proceedings, and if the taxpayer has previously been given an opportunity to make a statement. The assessment of the taxpayer’s statement by the tax office is to be placed on record.

Is the tax office only allowed to inspect accounts of taxpayers?

Essentially, inspection is intended for accounts where the taxpayer is the account holder. In addition, it is also intended that accounts may be inspected where the taxpayer has powers of disposal or is a trustor or beneficial owner, if there are grounds for assuming that the accounts are of interest as far as the tax proceedings are concerned. Here, too, the account holder must be given an opportunity to make a statement.

Legal protection – account inspection (this does not apply with regard to register queries)

The request for the disclosure of information is to be signed by the head of the tax authority. Persons who are not account holders must be given an opportunity to make a statement. Approval of an account inspection is decided by the Federal Finance Court by decision of a sole judge. An appeal can be filed against the decision of the Federal Finance Court by the affected customer. If the Federal Finance Court (the same authority) decides that the account inspection was improperly approved, the proofs obtained in the context of the inspection in question will be excluded from the tax proceedings in the context of which the request for information was submitted.

Introduction of the Capital Outflow Reporting Act (Kapitalabfluss-Meldegesetz)

The Capital Outflow Reporting Act governs the duty to report capital outflows and inflows.

Duty to report capital outflows

The reporting duty applies for withdrawals and transfers of EUR 50,000.00 and over from accounts and for non-remunerated transfers of securities from custody accounts of natural persons. Reports are made by the credit institution to the Federal Ministry of Finance (BMF).

To avoid potential structures that allow circumvention of the reporting duty, the amount limit of EUR 50,000.00 is supplemented by provisions envisaging the accumulation of outflow amounts. By this means, amounts under the EUR 50,000.00 threshold will be covered by the reporting duty if they manifestly relate to interconnected transactions and the total amount thereof results in an outflow of at least EUR 50,000.00.

The reporting duty does not apply in regard to business accounts of companies and escrow accounts of lawyers, notaries and certified public accountants.

What types of capital outflow are affected?
  • Disbursements and transfers from sight deposits, time deposits and savings deposits.
  • Disbursements and transfers in the context of the provision of payment services or in connection with the sale of Austrian federal bonds (Bundesschätze).
  • Transfer of ownership of securities by means of a gift made within Austria.
  • Relocation of securities to foreign custody accounts.
     
Does the reporting duty not apply if capital gains tax has been deducted in connection with the transfer of securities abroad?

No, the reporting duty applies independently of any capital gains tax obligation.

When will reports be submitted?
  • The first report must be made by 31.10.2016 in respect of the period 1.3.2015 to 31.12.2015.
  • The second report must be made by 31.1.2017 in respect of the period 1.1.2016 to 31.12.2016.
  • Thereafter, reports must be made on an ongoing basis (monthly).
     
Reporting duty in regard to capital outflows from Switzerland and Liechtenstein

The one-off reporting duty applies in regard to capital flows to Austria either from Switzerland or from Liechtenstein during a defined period. The reporting periods have been specified as 1.7.2011 to 31.12.2012 for Switzerland and 1.1.2012 to 31.12.2013 for Liechtenstein. Reports must be made to the Federal Ministry of Finance by 31.12.2016.

The reporting duty applies in regard to capital inflows of over EUR 50,000.00 to accounts or custody accounts of natural persons, and to accounts of Liechtenstein foundations and foundation-like establishments (Anstalten). As a further provision it is envisaged that in the event of an inflow of EUR 50,000.00 or over, all other inflows from the same country (CH or FL) in the same reporting period must also be reported.

What types of capital outflows are affected?
  • Disbursements and transfers from sight deposits, time deposits and savings deposits.
  • Disbursements and transfers in the context of the provision of payment services or in connection with the sale of Austrian federal bonds (Bundesschätze).
  • Transfer of ownership of securities by means of a gift made within Austria.
  • Relocation of securities to foreign custody accounts.
     
Anonymous one-off payment to avoid capital inflow reporting:

The capital inflows covered by the Capital Outflow Reporting Act do not have to be reported if the affected taxpayers settle their tax situation by means of an anonymous one-off payment. This one-off payment only applies if the account or custody account holder provides the credit institution with irrevocable written notification thereof by 31.3.2016. The one-off payment is to be withheld and remitted by the credit institution which is subject to the reporting duty by 30.9.2016 at the latest. The necessary cash amount is to be provided to the credit institution in a timely manner, otherwise the reporting duty will arise. The tax rate is 38% of the reportable assets (of the capital inflow). In principle, the one-off payment has the effect of a final settlement, although certain restrictions must be observed. Exemption from penalty also arises in the extent of the final settlement effect.

Introduction of the Common Reporting Standard Act (Gemeinsames Meldestandard Gesetz, GMSG)

This law governs the automatic exchange of information concerning data of persons who are liable to pay tax abroad.
The data will be reported to the Austrian tax administration, which will forward the data to the respective foreign tax authorities. Natural persons and legal entities/companies are affected.

What information is reported?
  • Name of the investor.
  • Address.
  • Country or countries of residence.
  • Tax Identification Number.
  • Date and place of birth (for natural persons).
  • Account/custody account number(s), deposit, giro and custody business.
  • Account balances/assets at year-end or the closure of the account.
  • Capital gains, other income from the assets on the account, and proceeds of disposal.
     


The Common Reporting Standard Act makes a distinction between the respective due diligence duties in the context of “existing accounts”/“new accounts” and natural persons/legal entities.
The reference date for the division into existing accounts/new accounts is 30.9.2016/1.10.2016.

Amendment of the Banking Act (Bankwesengesetz, BWG)

The criteria for the piercing of bank secrecy as envisaged in § 38 (2) BWG have been changed/extended. Previously, the piercing of bank secrecy was envisaged vis-à-vis public prosecutor’s offices and courts in the context of criminal proceedings or in fiscal offence proceedings. The piercing of bank secrecy is now also envisaged on the basis of a written request for information from the tax authority (irrespective of any fiscal offence proceedings).

In addition bank, secrecy does not apply in regard to:

  • Reporting duties under the Act on the Register of Accounts and the Viewing of Accounts.
  • Reporting duties under the Capital Outflow Reporting Act.
  • Reporting duties under the Common Reporting Standard Act.
     
Amendment of the Fiscal Offences Act (Finanzstrafgesetz, FinStrG)

Following the amendment, a written request for information from the fiscal offence prosecution authority to the credit institution is sufficient. The credit institution has no recourse against such requests. The accused and the persons with rights of disposal arising from the business relationship can file an appeal against this directive to the Federal Finance Court. If the Federal Finance Court decides that the regulation is inadmissible, the information issued in accordance with the request will be subject to a ban on use.

* Sector-specific personal identifiers (bPKs). These identifiers are used to identify persons in the context of E-Government proceedings. The identification code register authority creates and manages encrypted bPKs for the data applications of authorities and public-sector customers. (Source: https://www.dsb.gv.at/-/bereichsspezifische-personenkennzeichen-bpk-)