SWI 2019, 294
Within the framework of the OECD‘s BEPS project, 15 points of action were identified that are designed to curb international tax avoidance. Action 3 recommends the adoption of CFC rules in domestic law under which profits of controlled companies in low-tax jurisdictions are to be added back to the controlling company to the extent that they constitute passive income. Actions 8 to 10 recommend the application of the revised OECD Transfer Pricing Guidelines 2017 to combat BEPS manipulations. In Austria, the CFC rules of Action 3 were transformed into domestic law by adopting the new Sec 10a Corporate Income Tax Act. This was done in the form as required by the ATAD directive of the EU. The Transfer Pricing Guidelines 2017 (Actions 8 to 10) are legally relevant in Austria as guidelines for the interpretation of Sec 6 para 6 Income Tax Act, which is the domestic transfer pricing provision. As a consequence, both OECD recommendations are now applicable in Austria. However, as far as the specific area of BEPS is concerned, both fields of actions focus on one and the same goal, namely on stopping artificial transfers of passive income into tax havens. Yet, neither the final reports on these BEPS action points nor the EU ATAD nor Sec 10a Corporate Income Tax Act are explicitly dealing with the question of interrelationship between those two different Anti-BEPS tools. Helmut Loukota analyzes this interesting issue, based on two cases of profit shifting into invoicing companies set up in a no-tax jurisdiction.