Chapter VIII. Decisions of national tribunals

Chapter VIH

1. Austria

   ADMINISTRATIVE COURT

   APPEALS AGAINST THE DECISIONS OF THE LAND FINANCE ADMINISTRATION FOR VIENNA, LOWER AUSTRIA AND BURGENLAND: JUDGEMENT OF 10 JANUARY 19851

   Purchase of a plot of land by an official of the International Atomic Energy Agency—Joint liability of all persons involved in the acquisition process for payment of the tax—Article 17, item 4, of the Land Purchase Tax Act of 1955—If the buyer enjoys a tax exemption pursuant to the Agreement regarding the Headquarters of IAEA the sellers are held jointly liable for payment of the land pur-chase tax

   IN THE NAME OF THE REPUBLIC

   The Administrative Court, acting through Panel Chairman Karl i k as presiding officer and Privy Councillors Narr and Meinl as judges, with Dr. Schôller present as secretary, has ruled as follows concerning appeal 1, dated 30 July 1984, No. GA 11-784/1/84, lodged by Mr. , and appeal 2, dated 30 July 1984, No. GA 11-784/84, lodged by Ms. , both residents of , both represented by , an attorney at , against the decisions of the Land Finance Administration for Vienna, Lower Austria and Burgenland, each relating to land purchase tax:

   The appeals are denied as being without foundation.

   The appellants must pay to the Federal Government costs in the amount of S 2,200 for each appeal, making a total of S 4,400, within two weeks, subject to enforcement action in the event of failure to do so.

   The Federal Government's request for additional payment (S 400) is denied.

   Grounds for the judgement

   According to the records of the administrative proceeding, the first appellant had sold a threequarter share and the second appellant had sold a one-quarter share of a plot of land, registration number , cadastral district , to J K , an official of the International Atomic Energy Agency at Vienna, by means of a contract of sale dated 12/25 August 1984, for the total purchase price of 2.3 million schillings.

   The Land Finance Administration for Vienna, Lower Austria and Burgenland, by the decisions being challenged before the Administrative Court, denied as being without foundation the protests of the two appellants against the decisions which had been taken by the _j Finance Office on 8 August 1983 (appeal 2) and on 20 October 1983 (appeal 1) and by which an 8 percent land purchase tax in the total amount of S 184,000 had been imposed in respect of the aforementioned purchase on the appellants, in proportion to the share owned by each. The Land Finance Administration, after stating the circumstances of the case, concurred in the decisions and pointed out in support thereof that the personal tax exemption of the buyer arose out of the provisions under which officials of the International Atomic Energy Agency at Vienna are entitled to exemptions pursuant to the Agreement regarding the Headquarters of the International Atomic Energy Agency, BGB1. Nr. 82/1958, in conjunction with the Vienna Convention on Diplomatic Relations, BGB1. Nr. 67/1966 (cf. the

   Administrative Court's finding of 17 September 1976, Nr. 934/75, Slg. Nr. 5004/F). In this connection, the challenged authority further stated that while in the case of a contract of sale in which the buyer and seller are joint debtors it is within the discretion (art. 20, BAO) of the authority to decide from which of the joint debtors it will demand payment, there is no possibility of a discretionary decision where one of the parties to a contract of sale enjoys a personal tax exemption.

   It is against these decisions of the Land Finance Administration for Vienna, Lower Austria and Burgenland that the present appeals, identical in tenor, have been lodged; the appeals allege illegality of substance and illegality by reason of violation of procedural regulations.

   The Federal Minister of Finance submitted the documents of the administrative proceeding and the replies given by the challenged authority. The replies contain in each case the request that the appeal in question should be denied as being without foundation and that the appellants should be required to pay costs.

   Because of the close substantive and personal links between the two appeals, the Administrative Court has decided that they should be considered jointly and a judgement should be rendered jointly on both, and accordingly it has taken the following into account:

   In the proceeding before the Administrative Court, the appellants assert in their joint pleading in each case that they had suffered an infringement of their rights inasmuch as the disputed tax liability did not exist for them. In explanation of this interpretation of the appeal, the appellants assert, with regard to illegality of substance, in accordance with their pleading in the administrative proceeding, that the personal tax exemption of the buyer was assumed by the tax authorities wrongly or on the basis of insufficient examination. In view of their unfavourable income and property situation, they allege in this regard that the imposition of the land purchase tax would create all the more hardship for them because it was imposed on them solely as the result of a mistaken interpretation of the law by the challenged authority, which had altered to their detriment the decision whereby the buyer would be liable for the land purchase tax. It was stated, however, that in that legal recourse proceeding the two appellants had not been granted any legal status.

   This pleading is still insufficient to justify the granting of the appeal.

   According to the peremptory rule set out in article 17, item 4, of the Land Purchase Tax Act (GrEStG) of 1955, BGB1. Nr. 140, in the case of a purchase, the persons (i.e., all persons) involved in the acquisition process are liable to pay tax. According to article 6, paragraph 1, of BAO, persons liable, pursuant to the taxation regulations, for the same payment due under the tax laws are joint debtors (art. 891, ABGB).

   In the disputed decision, the challenged authority rightly relied on the basic arguments in the Administrative Court's finding of 17 September 1976, Zl .934/75, Slg. Nr. 5004/F, which dealt with a set of circumstances entirely similar to those of the case now in dispute (also...