A New Opportunity To Reclaim Austrian Real Estate Transfer Tax?

What the CJEU’s Nova Iberomoldes decision means for taxpayers

The Court of Justice of the European Union (CJEU) recently delivered its decision in Case C-837/24, Nova Iberomoldes. The ruling could have far-reaching implications for Austrian real estate transfer tax (RETT) levied on share transactions and corporate reorganisations involving real estate-owning companies.

The CJEU’s decision

The CJEU held that where a transaction qualifies as a restructuring or capital-raising measure protected by the Capital Duties Directive (2008/7/ EC), Member States may not impose RETT or a comparable indirect tax on the transaction. The Court emphasised that the prohibition of indirect taxation must be interpreted broadly, whereas exceptions must be interpreted narrowly.

The decision confirms that Member States cannot circumvent the Directive’s protection by simply labelling the levy as a RETT where the transaction constitutes a protected capital transaction.

Why this matters in Austria

The decision may be highly relevant for the Austrian RETT framework applicable to share deals involving real estate-owning companies. Following the amendments effective as of 1 July 2025, Austrian RETT may arise if at least 75% of the shares in a real estate-owning company are transferred, directly or indirectly, even where no real estate itself changes hands.

Against this background, the CJEU’s Nova Iberomoldes decision raises an important question: Can Austrian RETT be imposed where a transaction qualifies as a restructuring protected under EU law?

This question may be particularly relevant in connection with:

• the formation of holding structures;
• share contributions;
• share-for-share exchanges;
• intra-group reorganisations; and
• other corporate restructurings involving real estate-owning entities.

Could previously paid RETT be reclaimed?

Austrian RETT is generally a self-assessed tax. Section 201 of the Austrian Federal Fiscal Code (“Bundesabgabenordnung – BAO”) provides a mechanism under which a taxpayer´s self-assessment may be replaced by a formal assessment issued by the tax authorities in cases where the self-assessment was incorrect. As a rule, taxpayers may apply for such an assessment within one year of the self-assessment.

Obtaining a formal assessment can be particularly important from a procedural perspective.

Once a Section 201 BAO assessment has been issued, the Austrian tax authorities can apply the Nova Iberomoldes decision directly and take EU law into account when determining the tax liability. If the tax authorities agree that the RETT was levied contrary to EU law, a reduction of the assessment or a tax refund may result.

However, the tax authorities may also conclude that Austrian domestic law requires the taxation of the transaction and reject the taxpayer’s position. In that case, the taxpayer will have a formal assessment that can be challenged through the ordinary appeals process (Bescheidbeschwerde).

In other words, a Section 201 BAO application may not only offer a potential path towards a tax refund but may also create the procedural basis required to pursue the matter further before the Austrian courts, if necessary.

What should taxpayers do now?

Given the potentially significant financial implications of Austrian RETT, taxpayers should consider conducting a timely review of completed, ongoing, and contemplated transactions involving real estate-owning entities.

Past transactions

Taxpayers should review completed share deals and restructurings involving real estate-owning companies and assess whether:

• the transaction falls within the scope of the Nova Iberomoldes principles;
• RETT was self-assessed and paid;
• the time limits for a Section 201 BAO application remain open; and
• a refund claim may be pursued.

Ongoing disputes

Taxpayers currently involved in RETT proceedings should evaluate whether the CJEU’s reasoning can be invoked in support of their position.

Future transactions

For future reorganisations, the applicability of the Capital Duties Directive and the Nova Iberomoldes decision should be analysed at an early stage in order to minimise potential RETT exposure.

Is there a realistic chance to recover Austrian RETT?

The Nova Iberomoldes decision is particularly significant because its implications extend beyond the specific circumstances of the specific case. As an interpretation of EU law by the CJEU, the principles established by the Court must be taken into account by Austrian tax authorities and courts when applying the relevant provisions of EU law.

Where a transaction falls within the scope of the Capital Duties Directive, the Austrian authorities are required to interpret and apply domestic law in conformity with EU law. If national rules cannot be reconciled with EU law, the principles of EU law generally take precedence. While the outcome ultimately depends on the facts and structure of each individual transaction, the CJEU’s decision provides taxpayers with a strong legal basis for revisiting restructurings that were subject to Austrian RETT.

Accordingly, taxpayers affected by RETT in the context of qualifying restructurings should consider reviewing historical transactions without delay, particularly where procedural deadlines remain open.

How we can help

The Nova Iberomoldes decision may create new opportunities for taxpayers to challenge Austrian RETT and reassess the tax treatment of past, ongoing, and future transactions.

Our team can assist in:

• reviewing historical transactions to identify potential refund opportunities;
• assessing the availability of procedural remedies, including applications under Section 201 BAO;
• analysing whether a transaction falls within the scope of the Capital Duties Directive and the principles established by the CJEU;
• evaluating litigation and appeal strategies where Austrian RETT has already been assessed or paid; and
• structuring future reorganisations and share transactions with a view to managing Austrian RETT exposure.