Steuerliche Folgen der Auflösung einer eigennützigen Privatstiftung (Teil 1). (German)

The article "Tax Consequences of Dissolving a Self-Benefiting Private Foundation (Part 1)" analyzes the private legal foundations and the income tax treatment of dissolving a private foundation. It explains that the dissolution of a private foundation leads to the transfer of the remaining assets to the ultimate beneficiary. The reasons for the dissolution of a private foundation are mentioned, such as the expiration of the intended duration or the initiation of bankruptcy proceedings. The normal income tax law is applied during the liquidation of the foundation. Both cash and non-cash assets can be distributed during the dissolution, with hidden reserves usually not being uncovered. It is noted that the taxation rights of Austria must be examined when transferring assets to foreign beneficiaries. It is also mentioned that cross-border donations may be restricted by double taxation agreements. It is pointed out that the reduction of donations in connection with capital gains tax may not be compatible with the European freedom of capital movement. It is noted that there is an immediate tax liability upon the dissolution of a private foundation. It is also mentioned that the uncovering of hidden reserves occurs at the foundation level when they are realized through the liquidation of assets. The text discusses the tax consequences of dissolving a self-benefiting private foundation. It explains that hidden reserves in the private foundation are realized when the foundation either sells or terminates a business unit or transfers business assets to the ultimate beneficiary. In both cases, the difference between the fair value and book value of the asset is considered as income of the foundation. If the foundation is a silent partner in a company and the silent partnership is dissolved, the surplus from the dissolution is subject to taxation. It is also mentioned that tax-free amounts for the transfer of hidden reserves must be dissolved subject to interim taxation. Furthermore, the interim tax is discussed, which is credited in the context of the last assessment. It is explained that the final credit depends on the final liability for capital gains tax. The basis for calculating the interim tax credit is the difference between the donations of the year and the income subject to interim taxation. Special features related to the dissolution of the foundation are also addressed. It is mentioned that the balance of the interim tax evidence account is treated as a donation and that this amount should be subject to capital gains tax. However, it is noted that this can lead to disproportionately high tax burdens. The text deals with the calculation of the interim tax refund for private foundations. It discusses whether the fictitious donation of the interim tax credit should be taken into account when calculating the refund. There are different views on whether a relief under a tax treaty affects the refund. The Federal Finance Court has ruled that a certain provision of the Corporation Tax Act is incompatible with European law. It remains to be seen how the administrative practice or the legislature will react to this. The article addresses various tax aspects related to the dissolution of a private foundation. [Extracted from the article]

Im ersten Teil dieses Beitrags werden die privatrechtlichen Grundlagen der Auflösung einer Privatstiftung sowie die ertragsteuerliche Behandlung der Auflösung auf Ebene der Privatstiftung analysiert. Der zweite und abschließende Teil ist sodann der ertragsteuerlichen Behandlung auf Ebene des Letztbegünstigten, Fragen der Gebühren und Verkehrssteuern und einem (rechtspolitischen) Ausblick gewidmet. [ABSTRACT FROM AUTHOR]

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