The legislative framework governing Austria’s material transfer pricing policies is predominantly enshrined within the Income Tax Act (ITA), Section 6 paragraph 6, and is founded on the arm’s length principle as articulated in Article 9 of the OECD Model Tax Convention on Income and Capital. This adherence to the OECD Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations (the “OECD Guidelines”) is evidenced by the absence of rigid formulae and the predominance of principle-based guidelines. Consequently, Austria’s transfer pricing policies are largely aligned with the OECD guidelines. The OECD Guidelines (last updated in January 2022) are not mentioned in Austrian legislation but form the basis for the Austrian Transfer Pricing Guidelines (ATPG), which are publicly available, non-binding guidance designed to ensure uniform interpretation of transfer pricing through tax audits and, consequently, for taxpayers.

Moreover, the Transfer Pricing Documentation (Transfer Pricing Documentation Act (TPDA)) stipulates the preparation of transfer pricing documentation (master file and local file). In addition, the TPDA obliges the preparation and filing of a country-by-country report (CbCR) or CbCR notification.

Although it is not mandatory to file formal transfer pricing documentation with the Austrian tax authorities (ATA) outside the scope of the TPDA, it is recommended to avoid unfavourable adjustments in the course of a tax audit by the ATA. Owing to the option to estimate tax bases for tax authorities (based on the Federal Fiscal Code (FFC)), it is considered beneficial to prepare – and submit upon request – a proper transfer pricing analysis and documentation (according to the general principles of the FFC), even if one does not fall within the scope of the TPDA.

The initial ATPG were published in 2010, with the most recent revisions occurring in 2021. These revisions have been extensively reviewed, incorporating the updates of the OECD Guidelines as a consequence of the OECD Base Erosion and Project Shifting (BEPS) project as well as national and international case law. Moreover, the ATPG 2021 underwent revisions in March 2025 (Wartungserlass 2025). It is expected that the most recent contributions from the OECD (OECD-MC Update 2025), along with prevailing national and international case law, will be subject to further updates soon.

Furthermore, it is pertinent to note that the TPDA is applicable for financial years subsequent to 31 December 2016. It is important to emphasise that the TPDA has not been subject to any revisions since its initial publication.

For material purposes, Section 6 paragraph 6 of the ITA defines associated enterprises based on participations of more than 25%. However, even below this percentage threshold, it is recommended to comply with the arm’s length principle – given that other provisions in different Austrian tax acts (eg, Section 8 of the Corporate Income Tax Act) could also give rise to negative tax consequences (eg, hidden profit distributions) in the event of non-compliance.

For documentation purposes in accordance with the TPDA, enterprises are defined as associated if they are part of a consolidated multinational group of companies – ie, if they have the same shareholder with a stake of more than 50% and if at least one enterprise of the group is located outside Austria. Each transaction between associated enterprises is defined as a controlled transaction. However, it should again be noted that transactions between non-affiliated parties (ie, those lacking a joint controlling interest of more than 50%) are required to adhere to the arm’s length principle. These transactions are not subject to the TPDA but might be subject to documentation requirements in light of the FFC.

Neither the TPDA nor any other Austrian tax act explicitly lists specific transfer pricing methods. However, the ATPG catalogue the transfer pricing methods according to the OECD Guidelines.

According to the principles of the ATPG, the most appropriate pricing method should be selected on a transaction-by-transaction basis, providing the most reliable measure of an arm’s length result in each case. The prevailing OECD methods – namely, the comparable uncontrolled price, resale price, cost plus, transactional net margin and profit split methods – are all recognised. However, it is essential that the chosen method be aligned with the entity’s functional and risk profile. The application of alternative methods is permissible, provided they are justifiable and appropriate.

As stated in 3.1 Transfer Pricing Methods, the application of alternative methods is permissible according to the ATPG, provided they are justifiable and appropriate, as outlined in the OECD Guidelines.

There is no established hierarchy, as the ATPG align with the OECD Guidelines. However, in practice, a “natural hierarchy” tends to favour the comparable uncontrolled price method (if reasonably applicable). This can also be deduced by the sequence in which the transfer pricing methods are enumerated in the ATPG.

Ranges or statistical measures are generally authorised by the ATPG, so long as these are justifiable and appropriate.

In Austria, the determination of transfer pricing ranges for routine business units is primarily guided by the arm’s length principle as set out in the ATPG. In practical application, commercial databases are commonly used to identify profit margins of comparable independent entities.

Where a sufficiently robust set of comparables exists (as a rule of thumb, at least seven comparable business units should be included), statistical means may be employed to further strengthen the reliability of the analysis. In particular, the use of quartiles serves to narrow the arm’s length range by excluding the lowest and highest 25% of outcomes within the full dataset. This process results in the interquartile range, which is widely recognised as a reliable indicator for determining arm’s length profitability, especially in cases where the underlying data exhibits variability or includes outliers. Generally, no permanent loss-makers (ie, comparable business units with a negative result in two out of three years under review) should be included in the final set of comparables (unless the functional and risk profile would suggest including them in exceptional cases).

Year-end adjustments (YEAs) are typically regarded as a contentious financial practice and are only permitted under specific conditions. It is generally recommended that taxpayers adhere to the ex ante approach when determining their pricing with associated enterprises. This is due to the fact that third parties are unlikely to concur with subsequent price adjustments aimed at aligning the result of a contractual partner with a desired target value. It is therefore advisable to undertake year-round monitoring and make the necessary price adjustments. However, a YEA might be deemed at arm’s length if, for instance:

• the price-determining factors are agreed in advance;
• the ex ante pricing is subject to significant uncertainties; or
• reasonable efforts have been made by the taxpayer during the year to achieve an arm’s length transfer price (monitoring during the year).

If the arm’s length values applied in the context of the implementation of a transfer pricing method constitute a range, it can be deduced that the adjustment will invariably result in a value that falls within the arm’s length range, as determined on the basis of ex ante knowledge.

The ATPG generally adhere to the OECD Guidelines with regard to intangibles. Hence, there are no special rules in place.

It is important to note that the term “intangible” as used in transfer pricing regulations should not be understood in the traditional legal, tax or accounting sense. Rather, it should be interpreted independently for the purposes of the ATPG and the OECD Guidelines. Furthermore, it is crucial to consider the legal and economic owner of an intangible separately; that is to say, the DEMPE (development, enhancement, maintenance, protection and exploitation) functions must always be taken into account.

The ATPG generally adhere to the OECD Guidelines concerning hard-to-value intangibles; consequently, there are no specific regulations in place. On this basis, if the tax authorities can confirm the reliability of the information on which the ex ante price agreement is based, no corrections should be made on the basis of ex post results.

Furthermore, it is only possible to make a transfer pricing adjustment (primary adjustment) for a hard-to-value intangible transaction in Austria in accordance with national procedural regulations.

In Austria, cost sharing/cost contribution arrangements are a generally recognised concept. The ATPG typically adhere to the OECD Guidelines with regard to such arrangements and, consequently, there are no specific regulations in place.

The ATPG permit both “primary adjustments” and “secondary adjustments”, which are possible after the filing of the tax return. However, from a tax perspective, the execution of the adjustments must follow the rules of the FFC.

If the profits of a domestic group company belonging to a multinational group are found to have been increased as a result of a violation of the arm’s length principle, as outlined in Section 6 paragraph 6 of the ITA (in conjunction with Article 9 of the OECD Model Tax Convention on Income and Capital), this constitutes the primary adjustment. Typically, a “primary adjustment” – whether occurring within Austria or internationally – should result in a “corresponding adjustment” in instances where Austria is involved, with the objective being to prevent the occurrence of double (non-)taxation.

There are rules on secondary transfer pricing adjustments in the ATPG. Indeed, in the event of a breach of the arm’s length principle in cross-border transactions between associated enterprises, this must be given full consideration as previously unrecognised operating income or an overstated operating expense. This will inevitably have repercussions on the taxable business assets and thus lead to secondary adjustments. The regulations pertaining to secondary adjustments within the ATPG are largely consistent with the OECD Guidelines.

Austria has a plethora of treaties in place – the list of which is regularly updated by the Austrian Ministry of Finance. The aforementioned list includes links to the treaty texts. The following agreements have been entered into by Austria with other jurisdictions:

• double taxation conventions regarding income and capital with approximately 90 jurisdictions;
• tax information exchange agreements with approximately seven jurisdictions (as there is no double taxation convention in place with those jurisdictions); and
• double taxation conventions regarding inheritance and gift tax with approximately ten jurisdictions.

Further, Austria entered into the following multilateral agreements.

• The EU Arbitration Convention.
• The Convention on Mutual Administrative Assistance in Tax Matters (the “Mutual Administrative Assistance Convention”).
• Multilateral competent authority agreements, such as:
1. the Multilateral Competent Authority Agreement on Automatic Exchange of Financial Account Information; and
2. the Multilateral Competent Authority Agreement on the Exchange of Country-By-Country Reports.
• The Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting.

The ATA publish a list of jurisdictions with which proper tax information exchange exists on an annual basis.

In principle, Austria is willing to engage in joint audits. Cross-border co-operation between tax administrations in the area of transfer pricing can take various forms (eg, tax information exchange, secondment of auditors and joint audit; see also 6.3 Simultaneous Controls). The legal bases for such co-operation are usually the respective double taxation conventions, the Mutual Administrative Assistance Convention, or the Directive on Administrative Co-operation (DAC) in Direct Taxation.

In the field of transfer pricing, joint audits represent a pivotal instrument in achieving final clarity on the recognition of the arm’s length nature of transfer prices at the audit level. This approach effectively avoids the intensive and complex appeals and mutual agreement procedures that would otherwise be necessary for all parties involved. However, joint audits are seldom applied in Austrian audit practice.

Austria has been conducting simultaneous controls since 2013. The current framework governing simultaneous controls is laid down in Section 12 of the EU Administrative Assistance Act (EU-Amtshilfegesetz; EU‑AHG), which has been in force since 1 January 2013. According to this provision, the central liaison office or several member states may, upon proposal by the competent tax authorities, agree to conduct simultaneous controls.

Authorised tax auditors have the possibility to participate in simultaneous controls either through on‑site meetings in other member states or through the participation of foreign auditors in Austria.

Furthermore, when information is requested from the competent Austrian authority, auditors may be present on the premises of the authority during official investigations or may participate via electronic means of communication.

Austria has already participated in several pilot projects. However, simultaneous controls are still only applied sporadically in practice, and it remains uncertain when they will become a commonly used instrument.

Austria first joined the International Compliance Assurance Programme (ICAP) in the second pilot phase, which was launched in 2019; it has been part of the regular programme since the completion of this phase, which commenced in September 2021.

At the EU level, the European Trust and Cooperation Approach (ETACA) has been developed, which closely resembles ICAP and has been in its pilot phase since March 2022. The programme is designed to enable a co-ordinated and expedited assessment of cross‑border transactions by all tax authorities involved, thereby enhancing legal certainty for multinational enterprises.

Austria participated in the first pilot phase and will also take part in the second phase – this is scheduled to commence in January 2026 with the admission phase, and is expected to conclude in September 2026 with the outcome phase.

The Austrian system incorporates an APA programme, encompassing unilateral measures (referred to as “advance ruling”) in addition to bilateral and multilateral measures.

A bilateral and multilateral APA can be required to clarify the basis for transfer pricing for transactions falling under Article 7 or Article 9 of the OECD Model Tax Convention on Income and Capital and to clarify how the profits realised are distributed among the tax jurisdictions concerned. A bilateral and multilateral APA may concern transfer pricing issues of one or more taxpayers or be limited to individual intra-group transactions. A bilateral and multilateral APA is thus a formal written agreement between the ATA and the tax authorities of a treaty partner state, with the aim of governing the appropriate transfer pricing method and transfer prices for a forward-looking period (usually three to five years). In other words, a bilateral and multilateral APA is concluded for future years and transactions.

The initiation of bilateral and multilateral APAs is typically pursued by the taxpayer concerned. Nevertheless, the taxpayer possesses no legal entitlement to the successful execution of the APA in question. It is important to note that the resolution of bilateral and multilateral APAs is often a process that extends over several years.

It is evident that bilateral and multilateral APAs are grounded in the framework of the mutual agreement procedure articles of the relevant double tax treaties, as outlined in Article 25 of the OECD Model Tax Convention on Income and Capital. Consequently, the absence of domestic regulations pertaining to bilateral and multilateral APAs is notable.

Unilateral advance rulings can be requested by the taxpayer on the basis of Section 118 of the FFC in the case of international tax topics, including transfer pricing topics. However, it is to be noted that a unilateral advance ruling can only be requested for future fact patterns, meaning that the facts of the case must not already have been implemented.

The Austrian Ministry of Finance administers the programme.

As mentioned in 7.1 Programmes Allowing for Rulings Regarding Transfer Pricing and stated in Article 25 of the OECD Model Tax Convention on Income and Capital, bilateral and multilateral APAs are based on the mutual agreement procedure articles of the respective double taxation conventions. If negotiations on mutual agreement procedures (for the past) and APAs (for the future) take place at the same time for the same fact pattern, they are usually combined.

The scope of the respective double taxation convention imposes limitations on bilateral and multilateral APAs with regard to future transactions that fall under Article 7 or Article 9 of the OECD Model Tax Convention on Income and Capital. However, in cases where a past fact pattern is concerned, the APA would then simply be a mutual agreement procedure.

Unilateral advance rulings according to Section 118 of the FFC are available for several tax areas, including “international tax law”, which also covers transfer pricing issues. However, the ATA typically do not confirm the correctness of specific transfer prices under particular facts and circumstances in such unilateral advance rulings. They usually only give answers to legal questions raised by taxpayers that will occur in future cases, if the legal questions are of particular interest. In instances where the underlying facts and circumstances are identical or only differ marginally upon materialisation, the result of the unilateral advance ruling becomes legally binding for the ATA. According to the law, the ATA are required to conclude a unilateral advance ruling case within a maximum period of two months after filing of the ruling request; however, in practice, this waiting period is often significantly longer.

Besides unilateral advance rulings, express answer service (EAS) requests can also be filed to the Federal Ministry of Finance. In principle, the EAS is similar to the unilateral advance ruling; however, the result of an EAS can never be legally binding, and good faith is the only principle to be observed. As with the unilateral advance ruling, an EAS cannot provide concrete answers to a concrete transfer price under concrete facts and circumstances and can only answer legal questions. There is no charge for an EAS. It is also noteworthy that the Federal Ministry of Finance generally responds promptly to EAS requests.

It is evident that bilateral and multilateral APAs both result in a degree of legal certainty that surpasses that of the unilateral advance ruling/EAS, given that the tax authorities of the partner state have already been engaged. In contrast, the unilateral advance ruling/EAS cannot be regarded as having any binding authority over the tax authorities of the partner state.

The timeframe for submission of an APA, whether bilateral or multilateral, is contingent upon the specific provisions outlined in the relevant double taxation convention. However, it should be noted that this deadline exclusively pertains to prospective transactions. Furthermore, the initiation of a unilateral advance ruling is permissible under specific circumstances – namely, the presence of new information that emerges prior to the execution of the transaction in question. To illustrate, it is conceivable to submit a unilateral advance ruling request in FY 2025 for a transaction (transfer pricing setting) that will transpire for the first time in FY 2026.

The fees for the unilateral advance ruling are dependent on the taxpayer’s turnover and range from EUR1,500 to EUR20,000 per case. It should be noted that additional consulting fees may be incurred for such unilateral advance ruling.

No financial compensation is levied for bilateral and multilateral APAs or mutual agreement procedures, with the exception of consulting fees that may be incurred.

Unilateral advance rulings as well as bilateral and multilateral APAs or mutual agreement procedures typically cover periods of three years.

A unilateral advance ruling as well as a bilateral and multilateral APA generally have no retroactive effect.

Nonetheless, in addition to bilateral and multilateral APAs, a “rollback” is possible – provided that comparable facts and circumstances existed in previous periods. For instance, the mutual agreement procedure can be used to address transfer pricing issues that have occurred in the past, and APAs can be initiated to implement a solution for the future; both can be conducted simultaneously. However, Article 25 of the OECD Model Tax Convention on Income and Capital stipulates that the application to initiate a bilateral and multilateral mutual agreement procedure can be submitted within three years of the threat of double taxation becoming apparent. Further, Article 6 paragraph 1 of the EU Arbitration Convention also stipulates that the application for the initiation of a mutual agreement procedure (or any subsequent arbitration proceedings) must be submitted within three years from the date on which the threat of double taxation was consolidated.

Failure to comply with the obligation to file a (correct) CbCR, or the submission of a late filing, may result in penalties of up to EUR25,000 for gross negligence and up to EUR50,000 for intent.

In the absence of mandatory transfer pricing documentation, no penalty is incurred. However, non-compliance with the obligation to disclose information relevant to the assessment of taxes according to the FFC to the ATA upon request may result in a penalty of up to EUR5,000.

Moreover, in instances where adequate transfer pricing documentation is absent, the ATA might be authorised to estimate the tax basis. These estimates do not bear the characteristics of a penalty; however, they may nevertheless prove disadvantageous for the taxpayer. Additional penalties might arise in the case of transfer pricing adjustments.

The TPDA is responsible for the regulation of transfer pricing documentation for Austrian business units. Within the scope of the TPDA, the preparation of transfer pricing documentation (master file and local file) as well as the preparation and filing of a CbCR or CbCR notification is mandatory. Consequently, the Austrian rules regarding transfer pricing documentation are in accordance with the OECD Guidelines. In 2025, public country‑by‑country reporting (Public CbCR) was introduced under the CbCR Implementation Act (CBCR‑VG). Certain enterprises are required to publish an Income Tax Information Report with the aim of increasing transparency in respect of multinational groups.

The obligation to file a CbCR or CbCR notification arises in instances where a group has generated revenue in excess of EUR750 million during the previous business year. The threshold for the obligation to prepare a master file and local file is set at revenues exceeding EUR50 million across the two preceding business years. In instances where the ATA request transfer pricing documentation in accordance with the TPDA, the taxpayer is typically granted a deadline of 30 days to provide a response after the request for submission of the documentation. Further, the CbCR must be filed electronically within 12 months after the end of the respective financial year. If the Austrian entity is not obliged to file a CbCR but is a member of a group of companies where a CbCR must be filed, it needs to inform the competent tax office about the identity and residence of the reporting entity by the last day of the financial year for which a CbCR must be filed.

In the event that the thresholds for the TPDA are not fulfilled, the filing of a CbCR/master file and local file is not mandatory – although master files and local files can be submitted, usually upon request during the course of a tax audit, in order to fulfil the general documentation obligations according to the FFC. The documentation is required to “provide an expert third party with an overview of the business transactions within a reasonable period of time” (as the reasonable period of time is not defined, the period may depend on the facts, circumstances and complexity of each case).

In accordance with the provisions stipulated by the TPDA and the FFC, the setting-up of transfer pricing documentation is permitted in both the German and English languages, as outlined in the ATPG. However, it should be noted that – for documentations derived from the FFC – there may be instances where translation of specific components of the documentation into German is required, contingent upon the request of the relevant parties.

It is evident that the ATPG generally adhere to the OECD Guidelines. Although minor discrepancies may be observed, these are deemed to be insignificant.

The arm’s length principle under Austrian tax law is, in general, based on the arm’s length principle as per Article 9 of the OECD Model Tax Convention on Income and Capital ‒ ie, it follows the OECD Guidelines.

The OECD’s BEPS project exerts a considerable influence on domestic transfer pricing regulations – a fact that is evidenced by Austria’s general reliance on the OECD’s initiatives. In particular, the ATPG make continuous reference to the OECD Guidelines and the OECD’s transfer pricing initiatives.

The Austrian government has expressed a preference for a multilateral solution to the issues at hand, as evidenced by its active involvement in OECD deliberations concerning the digitalisation of the economy. Consequently, the initiatives under discussion are expected to exert a substantial influence on both domestic tax legislation and national guidelines.

The implementation of Pillar Two was adopted by the EU as a directive (EU Directive 2022/2523) in December 2022. The Austrian government has implemented the directive within the jurisdiction of the Minimum Taxation Act (Mindestbesteuerungsgesetz, or MinBestG). The regulations of the MinBestG are applicable to financial years beginning on or after 31 December 2023.

In Austria, the simplified approach under Amount B is not subject to mandatory application. Accordingly, this approach has not yet been applied. Amount B may be implemented in the coming years, but currently this remains uncertain.

In Austria, an entity is generally permitted to bear the risk of another entity’s operations and this may take the form of a guarantee, surety or letter of comfort. However, it is imperative that these are in accordance with the arm’s length principle; that is to say, the transaction must be conducted through a written agreement that leaves no doubt as to its content and a corresponding remuneration based on the rationale of the OECD risk framework (“control over risk”). Consequently, the transaction must also be carried out between third parties under comparable circumstances.

In Austria, the commentary on the OECD Model Tax Convention is generally decisive when it comes to the interpretation of the rules concerning allocation of profits to permanent establishments. Most of its double taxation conventions are based on the version of Article 7 of the OECD Model Tax Convention as amended prior to 2010 (ie, the OECD Model 2008), which means that Austria only applies an “Authorised OECD Approach (AOA) light”. The AOA is currently only relevant in so far as it does not contradict the OECD commentary on Article 7 as amended prior to 2010 (ie, the OECD Model 2008).

The fact that Austria has ratified a number of double taxation conventions in accordance with the United Nations (UN) Practical Manual on Transfer Pricing has a consequential effect on the domestic transfer pricing practices that are in place. However, should the relevant double taxation convention adhere to the OECD Model Tax Convention on Income and Capital, the UN Practical Manual on Transfer Pricing exerts a lesser influence – yet it may be utilised in instances where supplementary elaboration on the OECD Model Tax Convention on Income and Capital remains absent.

The prevailing ATPG currently incorporate provisions for safe harbours with regard to routine services. In addition to the low-value-adding intra-group services (LVAIGS) concept of the OECD, the ATPG have further adopted the concept of routine services, referring to the EU Joint Transfer Pricing Forum (EU-JTPF) Report on low-value-adding services.

Moreover, it is customary practice and also subject to regulation in the TPDA and the ATPG that, for the purpose of documentation, only “significant” cross-border intercompany transactions are to be considered. No legal definition is foreseen regarding the qualification as “significant”; this must be done on a case-by-case basis depending on the facts and circumstances of the case, the size of the business unit and/or other relevant aspects.

The Austrian legislative framework does not incorporate regulations governing savings that arise from operating in Austria.

The ATPG generally adhere to the OECD Guidelines and, consequently, there are no unique transfer pricing rules or practices in place.

The ATPG generally adhere to the OECD Guidelines with regard to financial transactions, and thus no specific regulations have been implemented.

Austrian rules do not necessitate the co-ordination of transfer pricing and customs valuation. However, it is imperative to acknowledge that ‒ if any adjustments pertaining to transactions subject to customs are to be made – the relevant costs must be given due consideration.

It is an uncommon occurrence for the ATA to undertake an audit that is solely concerned with transfer pricing. Nevertheless, transfer prices are progressively becoming the primary focus of tax audits.

In the event of transfer prices being adjusted by the ATA during a tax audit, the taxpayer has the right to challenge the results in an administrative appeal proceeding by filing an appeal – ie, initiating a proceeding before the Federal Fiscal Court (Bundesfinanzgesetz, or BFG; previously Unabhängiger Finanzsenat, or UFS) – within one month of the date of the administrative decree with the ATA.

Following the submission of an appeal, the ATA are required to deliver a preliminary decision within a period of six months, unless the complainant directly petitions for a ruling by the Federal Fiscal Court and the administrative authority duly presents the complaint to the aforementioned court within a three-month timeframe. In the absence of such a demand, the ATA will issue a preliminary decision at the administrative level, which may be contested by petitioning the administrative authority to submit the complaint to the Federal Fiscal Court. The Federal Fiscal Court will then hear the case at a second stage.

In the third stage, taxpayers or the ATA are permitted to lodge an appeal with the Supreme Administrative Court (Verwaltungsgerichtshof, or VwGH) and/or the Constitutional Court (Verfassungsgerichtshof, or VfGH) within a period of six weeks from the decision of the Federal Fiscal Court. Moreover, in instances where the applicability of European law to national court proceedings is ambiguous or its interpretation is unclear, the matter can be referred to the ECJ for a preliminary ruling.

Furthermore, it is worth noting that an appeal does not have the effect of postponing the collection or enforced collection of the tax in question; that said, it is possible to submit a request for the suspension of levying to the relevant ATA in the event of a tax demand being issued. Such a request is usually granted, unless there are exceptional circumstances to the contrary.

The case law surrounding transfer pricing in Austria is, at present, moderately developed. Consequently, European (international) case law is utilised wherever reasonably possible.

The most relevant court decisions regarding transfer pricing (both from the VwGH and the BFG) are as follows. Most of those decisions are also included within the ATPG.

• VwGH 27 November 2020, Ra 2019/15/0162 – based on this decision, the legal owner of an intangible is generally relevant for transfer pricing reasons. However, if the actual behaviour deviates from the contractual agreements or if there are no written agreements, the economic ownership is relevant.
• VwGH 4 September 2014, Ra 2012/15/0226 – for a functional allocation to the permanent establishment, the core activity must be carried out in the source state, whereby the place of work typical for the job profile is decisive.
• VwGH 20 October 2009, Ra 2006/13/0116 – if an arm’s length price cannot be determined using the comparable uncontrolled price method, the service of the permanent establishment will generally have to be invoiced at a transfer price determined using the cost-plus method or the cost-based TNMM. A comprehensible justification is required for the definition of the profit mark-up.
• VwGH 17 March 2021, Ra 2020/15/0113; 27 November 2020, Ra 2019/15/0162; 19 April2018, Ra 2017/15/0041; 26 January 2012, Ra 2009/15/0032; 28 January 2003, Ra 99/14/0100 – a particularly precise service description is required in situations where the purpose of the contract is to provide complex services (eg, efforts, advice, know-how transfer). The documentation must enable an expert third party to verify within a reasonable period of time whether and to what extent the delimitation of income between the taxpayer and the affiliated company complies with the principle of arm’s length behaviour. For this purpose, the services rendered and remunerated must be presented in detail and recorded in concrete terms.
• VwGH 26 November 2015, Ra 2012/15/0023 – a low-risk distributor is generally characterised by the purchase and sale of goods. Generally, a low-risk distributor also has its own customer base as it is operating in its own name and on its own account.
• VwGH 8 July 2009, Ra 2007/15/0036 – as regards group allocations, the essential statement from a transfer pricing perspective is that the mere submission of documentary evidence is not sufficient to prove the provision of services (ie, the so-called benefits test) if the specific content of the services and the specific value of the services cannot be clearly determined from such documents.
• VwGH 26 February 2004, Ra 99/15/0127 – there is no procedural provision that would require the tax assessment to be made only after a (requested) mutual agreement procedure has been concluded.
• VwGH 18 December 2019, Ra 2018/15/0025 – if the legal requirements of Section 48 of the FFC (ie, Austrian provision regarding potential unilateral relief from double taxation) are met, it is at the discretion of the ATA to order the de-taxation provided for therein.
• UFS 30 July 2012, RV/2515-W/09 – regarding benchmark studies and the transactional net margin method, in cases where the price determined by the taxpayer is outside the range of arm’s length values, the ATA must make an adjustment to a point within the range. It may be appropriate in such cases to choose the median, especially if no other value within the range is more reliable.
• BFG 11 July 2014, RV/7101486/2012 – this concerns the arm’s length nature of the charged management fees.
• BFG 22 November 2018, RV/2100386/2017; UFS 6 April 2007, RV/4687-W/02 – regarding the profit mark-up of intercompany services, accordingly, services with a routine character cannot always easily be charged with a profit mark-up of 5%. Hence, a mark-up of 10% might be considered as more appropriate in some cases (such as in the case of this decision).
• UFS Feldkirch 20 May 2011, FSRV/0015-F/10 – this concerns negligent reduction of customs if a declared customs value is obviously not in line with the arm’s length principle.
• UFS Wien 2 October 2006, RV/0362-W/02 – this concerns the determination of transfer prices on a flat-rate basis and start-up losses.
• BFG 21 October 2020, RV/5100965/2018 – this concerns:
1. management fees and the cost base, which should generally include all expenses in relation to the service provided (excluding pass-through costs and shareholder activities); and
2. the profit mark-up, which is based on the value added through the service provided.
• BFG 27 March 2020, RV/7105894/2018; 2 August 2018, RV/7102556/2017 – this concerns transfer pricing adjustments from an Austrian procedural perspective.
• UFS Graz 7 March 2012, RV/0171-G/08 – this concerns distribution business units and the estimation of expenses (purchase of goods) within the meaning of Section 184 of the FFC.
• BFG 2 January 2020, RV/7102670/2012 – this concerns a limited risk distributor and the arm’s length operating margin of such business units.
• BFG 4 November 2019, RV/5100539/2013 – regarding a profit split between the parent company and its subsidiary, the allocation of income does not necessarily have to coincide with the beneficial ownership of the items used to generate income. Rather, it depends on who has actually provided services and thus participated in economic life.

In general, Austria does not impose restrictions on outbound payments relating to uncontrolled transactions. However, care must be taken regarding potential embargo jurisdictions.

In general, Austria does not impose restrictions on outbound payments relating to controlled transactions. However, care must be taken regarding potential embargo jurisdictions.

The Austrian legislative framework does not encompass regulations regarding the effects of other countries’ restrictions (ie, when it will restrict them) when it comes to transfer pricing.

Austria does not disclose information regarding unilateral advance rulings, bilateral or multilateral APAs, or the outcomes of transfer pricing audits. However, the answers of the ATA on EAS requests are published on a website of the ATA.

The use of “secret comparables” or “hidden comparables” is prohibited for the ATA.