Issues Relating To Organizational Forms And Taxation. AUSTRIA CHSH Cerha Hempel Spiegelfeld Hlawati

Transcription

1 Issues Relating To Organizational Forms And Taxation AUSTRIA CHSH Cerha Hempel Spiegelfeld Hlawati CONTACT INFORMATION Dr. Albert Birkner, LL.M. CHSH Cerha Hempel Spiegelfeld Hlawati Parkring 2 A-1010 Vienna albert.birkner@chsh.com 1. Identify the forms of organization available in your jurisdiction and discuss the advantages and disadvantages of each (eg., corporation, limited liability company, partnership, limited partnership, co-operative, etc.), describing which type of legal entity is mostly used or is of special interest, namely by foreign investors. Austrian law makes a distinction between legal entities which involve the personal liability of the entrepreneur and those which shield the shareholders from personal liability for the debts incurred by the company: Examples of non-corporate legal forms: Civil law partnership (Gesellschaft nach bürgerlichem Recht); General partnership (Offene Gesellschaft, "OG"); Limited partnership (Kommanditgesellschaft, "KG"); and Silent partnership (Stille Gesellschaft). Examples of corporate legal forms: Limited Liability Company (Gesellschaft mit beschränkter Haftung, "GmbH"); Stock corporation (Aktiengesellschaft, "AG"); and Societas Europaea (European Company Europäische Gesellschaft, "SE").

2 In addition to these three major forms of corporations, various legal associations exist, the most important of which are cooperative societies (Erwerbs- und Wirtschaftsgenossenschaften), associations (Vereine), and mutual insurance associations (Versicherungsvereine auf Gegenseitigkeit). The bulk of business, however, is conducted in the form of either a stock corporation or a limited liability company, the latter being by far the most frequently used corporate form in Austria. Most foreign-owned businesses in Austria are operated as limited liability companies since they provide for limited liability while at the same time allowing the company to remain essentially in private hands. They are also easy to form and operate. In the following we will limit our answers to the most relevant forms, namely OG, KG, GmbH, AG, and SE. OG Advantages: Although the OG is a non-corporate legal form, it may have rights, incur liabilities, acquire title to real estate and sue or be sued in its own name. No restrictions apply with regard to the maximum number of partners, their nationality, or residence. There are no formal requirements for its establishment, except for its registration with the commercial register. Disadvantages: All partners have unlimited liability for the obligations of the partnership. Because the statutory regulations regarding the distribution of profits and losses are generally insufficient, the relevant provisions should be included in a partnership agreement. KG Advantages: The limited partner (Kommanditist) is only liable up to the amount of his/her capital contribution. Disadvantages: Limited partners do not have signing powers. They may, however, be appointed special agents (Prokurist) of the partnership or act under a commercial power of attorney (Handlungsvollmacht). GmbH Advantages: Shareholders have a strong role in the GmbH. The limited liability company is a corporate legal entity. Generally speaking, shareholders cannot personally be held liable for any debts and obligations. Disadvantages: Shares may only be transferred by notarial deed. The costs incurred in establishing a GmbH are relatively high and it is subject to the provisions of the Austrian Limited Liability Company Act ("GmbHG"). AG Advantages: The ease with which shares can be transferred. The possibility to take part in the capital market. Disadvantages: High establishment costs. Subject to the Austrian Stock Corporation Act ("AktG"). SE Advantages: Possibility to establish a one-tier system. Disadvantages: Long establishment process; high establishment costs.

3 2. Are there attributes of the form that you consider unique to your jurisdiction? No. 3. Describe the management and governance structure for each organizational form. OG The main feature of a general partnership is the unlimited personal liability of all partners for the obligations of the partnership. In the absence of any written regulations in a partnership agreement, all partners are entitled and obliged to manage the partnership. The same applies to the representation of the partnership. Each individual partner is entitled to represent the partnership externally unless otherwise provided for in the partnership agreement. The power to represent the OG cannot be limited with effect to third parties except in the case of collusion. As the Austrian Commercial Code ("UGB") does not contain detailed provisions on various aspects of partnership law, it is highly advisable and common practice to draft a partnership agreement when setting up a partnership in order to regulate the rights and obligations of the partners. KG KG is an association of two or more individuals/corporations where at least one general partner (Komplementär) is fully liable for the obligations of the partnership. The limited partner (Kommanditist), however, only has limited liability up to the amount of his/her capital contribution. Due to his/her limited liability, the limited partner may not take part in the management of the business and has no signing power. GmbH The company is represented by the management board, which consists of one or more managing directors appointed by the shareholders by means of separate shareholders' resolutions. The managing directors may be appointed for an indefinite period of time and are directly bound by shareholders' resolutions. The law on limited liability companies requires the appointment of a supervisory board for certain types of limited liability companies. Those companies which are not required by law to appoint a supervisory board may voluntarily do so. The supervisory board is elected by the shareholders and must consist of at least three members. AG Unlike a GmbH, the AG has, without exception, a two-tier management system composed of the management board and the supervisory board. The law provides for two further obligatory bodies: the shareholders meeting, and the auditors. The management board of an AG consists of one or more individuals, called the members of the management board (Vorstandsmitglieder). The AG is represented by and acts through the members of the management board. The supervisory board of a stock corporation consists of at least three members, although the articles of association may provide for a larger number of supervisory board members. The managing directors of a stock corporation are not bound by instructions issued by the supervisory board or the shareholders meeting. The shareholders meeting elects and removes the members of the supervisory board as well as the auditors, decides on changes to the articles of association and specific items which are reserved for the shareholders meeting (e.g. the distribution of profits).

4 SE The SE may be established in the form of a two-tier or a single-tier system. The statutes of the SE must provide for governing bodies such as the shareholders' meeting/general meeting of shareholders and either a management board and a supervisory board (two-tier system) or an administrative board (single-tier system). Under the two-tier system, the SE is managed by a management board. The member or members of the management board represent the company vis-à-vis third parties and in legal proceedings. The number of members of the supervisory board is determined by the Stock Corporation Act (Aktiengesetz). Under the single-tier system, the management board consists of three natural persons unless the articles of association provide for a higher number. The members of the management board are appointed by the shareholders meeting. 4. Is there a residency requirement for management or owners? In particular, are there restrictions or prohibitions on foreign investors to perform, or have interests in, specific activities? Persons resident outside of Austria may act as managing directors or shareholders. If the Austrian company carries out business activities in Austria, it may be necessary under applicable Austrian trade law to obtain a trade license (Gewerbeschein) and to employ a managing director (Geschäftsführer) who meets the proficiency requirements for the business to be carried out. This person must either be a person authorized to represent the corporation or an employee working at least half of his/her time for the corporation and paying social security contributions. The managing director is responsible for the correct conduct of the business in compliance with applicable trade law. The managing director needs to be resident in Austria or in the European Economic Area. According to the land transfer acts of the Austrian federal states, the transfer of real estate property to foreigners (legal entities and individuals) and in some cases also the transfer of tenancy rights is subject to the prior consent of the respective land transfer authority. This restriction also applies to indirect acquisitions (e.g. share deals) since the respective state legislation and administrative practice refers to the ultimate owner of legal entities for the purpose of assessing the necessity of prior consent. 5. Describe the extent to which management and owners are exposed to liability. OG Both partners of an OG are fully liable and may not limit their liability regarding the partnership s debts. KG The general partner (Komplementär) is fully liable for the obligations of the partnership, whereas the limited partner (Kommanditist) only has limited liability up to the amount of his/her capital contribution.

5 GmbH The liability of shareholders in a limited liability company is generally limited to their respective capital contributions; liability exceeding this limit occurs only if shareholders are in breach of legislation which aims to protect creditors. AG/GmbH/SE Managing directors may be held personally liable for damage caused due to negligent breach of their legal obligations. It is often the case that only the company itself, represented by the remaining managing directors, the shareholders or the bankruptcy trustee, are entitled to claim damages. Direct claims may only be brought by third parties in specific cases if the managing director has violated a law protecting the interests of the creditors, intentionally infringed public policy, or committed a criminal offence. 6. Ownership interest: (i) how is it represented? (ii) is it transferable?; and (iii) is there a minimum number of owners? OG (i) (ii) If one partner objects to a measure proposed by the management, the measure in question may not be implemented. Only measures which are performed in the usual course of business may be carried out by the partners individually. Extraordinary agreements (e.g. taking out loans for a considerable sum of money, selling land, opening new branches, etc.) require a decision to be taken by all partners jointly. It is only possible to transfer the partnership if all partners agree to this. Termination by a decision issued by a partner leads to the dissolution of the OG. However, the partnership agreement may provide other regulations governing termination. (iii) Minimum number of owners: two. KG: (i) Limited partners are entitled to receive a share of the profits, request a written copy of the financial statements, and check their correctness. This also includes the right to inspect the books and accounts of the KG. (ii) + (iii) Please see the information provided in (ii) and (iii) above for the OG.

6 GmbH Copyright Lex Mundi Ltd (i) Apart from the basic rights of shareholders to receive dividends and sell, pledge, divide, and bequeath share quotas in accordance with the law and the articles of association, shareholders also have the right to take part in all shareholders' meetings, participate in discussions, and vote. Shareholders' resolutions are passed in the shareholders' meeting except where, in a specific case, shareholders agree on a certain subject in writing or agree in writing to pass a resolution. Certain shareholders' resolutions have to be passed at a formal shareholders' meeting. The shareholders' meeting (Generalversammlung) must be held at the corporate seat of the company unless otherwise provided for in the articles of association. The approval of all shareholders is required in order for a shareholders meeting to be held outside of Austria. Shareholders are entitled to a share of the profits in accordance with the annual financial statements of the company unless they excluded the distribution of such profits in the articles of association or by means of a shareholders' resolution. The profit distribution is based on the paid-in capital contributions of the shareholders unless otherwise provided for in the articles of association. Shareholders may not request repayment of their capital contributions. (ii) The shares are not incorporated as negotiable instruments and may only be transferred by means of a notarial deed. (iii) There is no minimum number of owners. AG (i) The shareholders of an AG have in particular the following basic individual rights: to receive dividends in accordance with the articles of association or shareholders' resolutions; to receive a proportionate share of liquidation proceeds (Liquidationserlös) in the case of the liquidation of the company; to inspect the annual financial statements; to sell, pledge, and bequeath their shares in accordance with the law and the articles of association; to take part in shareholders' meetings, to request information, and to vote; to file actions directed at declaring the corporation itself null and void. In the interests of creditors and other shareholders, a stock corporation may only be declared null and void if certain essential provisions of the articles of association are absent or null and void. The management board must answer inquiries raised in the shareholders' meeting and may only refuse to answer on the grounds that an answer would be detrimental to the interests of the company, the interests of related enterprises, or the public interest.

7 (ii) Copyright Lex Mundi Ltd A stock corporation may issue either registered shares, in which case the shareholders are to be recorded in the non-public shareholders' register kept by the corporation, or bearer shares. The shares of an AG are negotiable instruments and hence can be transferred with relative ease. For bearer shares, the handing over of the share certificate is all that is required. Registered shares have to be endorsed to the new owner who will then be recorded in the non-public shareholders' register. (iii) There is no minimum number of owners. SE The rules as outlined above in respect of the AG apply. 7. Is there a minimum capitalization? OG There is no minimum capitalization. KG There is no minimum capitalization. GmbH The minimum share capital of a limited liability company is EUR 35,000 and is to be paid up at least by half. AG The initial capital of a stock corporation must amount to at least EUR 70,000. Special minimum capital requirements apply to Austrian stock corporations performing certain kinds of business. For example, special minimum capital requirements apply to banks under Austrian law (EUR 5 million), investment service enterprises (EUR 125,000), or investment funds (EUR 10 million). SE: The SE Regulation requires subscribed capital of at least EUR 120,000. The special minimum capital requirements for AGs also apply to SEs. 8. Is there a security that can be issued to the public? Only AGs may issue securities to the public. 9. Can the form incur debt, or grant security for debt? All of these forms may incur debt and grant security for debt.

8 10. What is the duration of the form? Can it be renewed? Copyright Lex Mundi Ltd Unless otherwise provided for in the articles of association, a corporate form is formed for an indefinite period of time. If the articles of association contain provisions concerning the duration of the company, such provisions must be registered with the commercial register. 11. Describe the process, customary time period and approximate cost of establishing the form. OG/KG The establishment of an OG and KG does not require the execution of articles of association, although it is advisable to draft such a partnership agreement. Furthermore, these forms must be registered with the Austrian commercial register. Total expenditure of approximately EUR 3,000 to EUR 5,000 should be assumed for the purposes of establishing an OG or a KG. GmbH The whole process of establishing a GmbH is likely to take approximately two to three weeks, from the respective decision to establish a GmbH until its actual registration with the commercial register. The amount of time it takes will largely be at the discretion of the judicial officer in charge at the commercial register. The incorporation of a GmbH requires the execution of the articles of association in the form of a notarial deed in the presence of an Austrian notary public. Such a notarial deed has to be drawn up by a representative of the founding shareholder. The entire registration process will trigger costs of between approximately EUR 3,500 and EUR 5,000. AG It takes several weeks to set up a stock corporation. There are two ways of establishing an AG: the one stage formation and the successive formation. One step formations require the founders to subscribe to all shares. Successive formations require subscription to a part of the shares by the general public. However, successive formations are rarely used. One stage formation is the usual form, for which the following steps are required: Articles of association and their notarisation Subscription of all shares by the founders Appointment by the founders of the supervisory board and notarization of this act Appointment by the founders of the auditor for the first financial year Appointment of the management board by the supervisory board Preparation of a written report on the formation Examination of formation by the management and the supervisory board In the case of a formation with contributions in kind, a certified public accountant has to be appointed if the founders are members of the management or supervisory board

9 Payment of at least 25% of the capital stock in the form of shares in the case of par value share, plus a premium in the case of non-par value shares; contributions in kind have to be made immediately. The costs of establishing an AG should be assumed to be between EUR 8,000 and EUR 10,000. SE The establishment process will take several months, depending on the formation procedure, the types of companies involved, negotiations with employees' representatives, and also depending on whether or not some of the companies involved are listed on the stock exchange. An SE must be registered with the commercial register in accordance with the provisions of the Stock Corporation Act (Aktiengesetz). In addition to the registration application which must be submitted to the court, one of the following documents has to be filed: the agreement on the involvement of employees according to Article 4 of Council Directive 2001/86/EC; or the resolution according to Article 3 para. 6 of Council Directive 2001/86/EC; or a declaration from all members of the management board that the time period pursuant to Article 5 of Council Directive 2001/86/EC has expired. After the particulars of the SE have been entered into the commercial register and have been publicized in the edict database and in the Official Gazette of the "Wiener Zeitung", the court must notify the Publications Office of the EU for the purposes of being published in the Official Journal of the EU. The establishment process will trigger costs in the amount of EUR 50,000 to EUR 80, Are there requirements for the government (central or local) to be part of a project or investment vehicle or receive part of the profits arising therefrom (apart from taxes)? When the state acts in the private sector, it is obliged to act in accordance with all civil rights and obligations. Apart from all of the matters of private economic administration and budget management (as specified under Article 116 Sec. 2 of the Austrian Federal Constitutional Act, "B-VG"), the area of competence of local or central governments includes all matters which "exclusively or overwhelmingly deal with interests of the local community and are suited for management by the community within its local borders". Acquisitions involving state-owned companies may be subject to certain conditions of approval by central or local governments.

10 13. For what taxes is the form liable? Copyright Lex Mundi Ltd Taxation of founding of companies Taxation of the capital committed: The founding of a company (AG, GmbH) or a partnership having a company as a personally limited partner gives rise to company tax amounting to one percent of the value of the amounts of capital agreed upon or supplied by all of the (nonpersonally liable) partners. Companies which are increasing their share capital or that provided by the shareholders, and the equipping of branch offices in Austria with capital stemming from its non-austrian parent, are also subject to taxation of one percent. Property acquisition taxes: The transferring of properties on a payment basis between living persons and the transferring of all shares of companies holding property or the procurement of all shares by a single party give rise to property acquisition taxes amounting to 3.5% of the quid pro quo. Property acquisition taxes amounting only to 3.5% of two times of the assessed value are levied for certain kinds of changes of legal form. An official court fee of one percent of the basis of calculation for the property acquisition taxes is levied for the purposes of entering the new owner in the official land register. Taxes levied on operating companies: Corporate income tax: The profits realized by corporations (primarily AGs and GmbHs) are subject to a non-progressive corporate income tax of 25%. Fully tax-liable GmbHs have to pay regardless of whether a profit was earned or not an annual minimum tax of EUR 1,750 (AGs: EUR 3,500). A lower rate of taxation is applied to a corporation during its first four quarters of operation. The dividends paid out by a company to its shareholders are subject to a withholding tax of 25% (capital gains tax). For natural persons who are tax liable in Austria, this satisfies the need to pay taxes on this income. There are no further encumbrances (final taxation). Local tax: Local tax is paid by every company with employees in Austria. It amounts to 3% of the total remuneration. This tax can be reported as a corporate expenditure and is thus a deduction. The contribution to the Family Burden Equalisation Fund (Familienlastenausgleichsfonds "FLAF") is similar to the local tax. The latter amounts to 4.5% of the total remuneration. Turnover taxes: The turnover tax is levied on taxable proceeds from business transactions in Austria. The rates of taxation amount to 10% or 20%, the latter being the normal rate. Deduction of earnings taxes: In Austria, the taxes to be paid by employees on their remuneration (taxes on their income) are retained by the employer, who then transfers it to the tax authorities. Taxation of corporations: Income earned by natural persons is subject to a progressive income tax not exceeding 50%. Depending upon whether the partner is a natural or legal person, the stakes in the profits held by partners in partnerships are subject to either personbased or corporate income taxes. Income arising from interest paid on funds invested or on other receivables held vis-à-vis banks, earnings on capital invested in certain kinds of Austrian receivables-based securities,

11 and dividends distributed by domestic corporations (GmbHs and AGs) are subject to a final tax of 25%. Income earned by partners in partnerships (OG, KG) is not taxed at the corporate level (no corporate income tax). Rather, it is taxed at the personnel level of the partners. 14. What is the tax treatment of payments to foreign owners? Dividends and other kinds of shares in profit accruing to a domestic corporation from its holding of stakes in a domestic AG or GmbH are exempt from corporate income taxes. The same applies to dividends, shares in profit and proceeds from disposals and the liquidation of assets received by a domestic corporation from a non-austrian corporation which is comparable to a domestic AG or GmbH, in those cases in which the domestic corporation has directly held for at least one year a 10% stake in the non-austrian company ("international inter-corporate stockholding"). A corporation which neither has its seat nor its management located in Austria is only subject to corporate income tax for domestic capital gains. Foreign corporations are taxable for earnings from investments and participations (i.e. distributions and shares in profits from dormant equity holdings): for a withdrawal of corporate income tax in the amount of 25%. Income from debt securities and bank deposits or loans are not taxable for foreign corporations. In most cases, double taxation agreements (Doppelbesteuerungsabkommen "DBA") provide lower tax rates. Austria has concluded DBAs with a considerable number of countries. Most of these contracts are adaptations of the models issued by the OECD. These contracts foresee a reduction of Austria s withholding tax. The relationships with corporations based elsewhere in the EU are governed by the Parent Subsidiary Directive. The application of most of the DBAs results in the reduction of capital gains taxes of between 5% and 15%. 15. Is there a tax treatment which would impact foreign owners differently than owners resident in the jurisdiction? Regulations stipulate that official approval is required for the purchase by natural or legal persons who are not Austrian nationals, or by Austrian companies with non-austrian owners, of property in Austria or rights deriving from property. Austria s states have their own regulations, but these have been adapted for citizens of EEC countries to allow the exercising of the four freedoms in the Community. This implies that legal transactions with them are to be treated as if they were between citizens of Austria.