CJEU – Recent Developments in Direct Taxation 2023

Daniel W. Blum

1. Introduction

The Austrian Supreme Administrative Court’s request for a preliminary ruling by the CJEU in the case of Finanzamt für Großbetriebe forms part of a controversy led in Austrian jurisprudence and literature over the compatibility of the Austrian rules on taxing foreign investments funds which already lasts for nearly two S. 100decades. At the debate’s core lies the issue that the Austrian rules in question foresee an inherently different definition of domestic as opposed to foreign investment funds while treating them ultimately both as fiscally transparent with the result that from an Austrian income tax perspective the income derived via the fund is attributable to the fund’s investors. While in the domestic setting the tax definition of an investment fund is based exclusively on the regulatory status of the investment vehicle, foreign funds – according to the Austrian provisions applicable in the proceedings at hand – are defined in a broad manner covering essentially all vehicles irrespective of their legal form as long as they invest their assets in a risk diversified manner. The difference in scope is even increased by the fact that under Austrian regulato...