{"id":1164,"date":"2026-07-15T11:27:17","date_gmt":"2026-07-15T09:27:17","guid":{"rendered":"https:\/\/www.moore-salzburg.at\/?p=1164"},"modified":"2026-07-15T13:44:15","modified_gmt":"2026-07-15T11:44:15","slug":"grunderwerbsteuer-eugh-urteil","status":"publish","type":"post","link":"https:\/\/www.moore-salzburg.at\/en\/grunderwerbsteuer-eugh-urteil\/","title":{"rendered":"ECJ ruling on property transfer tax"},"content":{"rendered":"

New arguments for restructuring with real estate relevance<\/h2>\n\n\n\n

The European Court of Justice ruled on 4th June 2026 in the case of Nova Iberomoldes (C-837\/24) that Portugal was not permitted to levy IMT (comparable to the Austrian real estate transfer tax) on the contribution in kind of shares in a property-owning company. This ruling is particularly relevant for Austrian companies because the Portuguese legal situation is comparable to the Austrian one in key aspects.<\/p>\n\n\n\n

This brings a question into sharper focus, which is of great importance in practice: Is the Austrian real estate transfer tax in certain internal group restructurings compatible with Property reference<\/a> Is it legally tenable under EU law?<\/p>\n\n\n\n

The case in brief<\/h4>\n\n\n\n

In the underlying case, a holding company was established in Portugal. The capital of this company was raised through contributions in kind. Among the assets contributed were majority shareholdings in several limited liability companies. One of these companies held two properties in Portugal.<\/p>\n\n\n\n

Under Portuguese law, the acquisition of shares in a company that owns property may be treated for the purposes of property transfer tax as a direct acquisition of property if, as a result, a shareholder holds at least 75 % of the shares. Although the properties themselves were not transferred, the Portuguese tax authorities imposed property transfer tax.<\/p>\n\n\n\n

Why the ECJ rejected the property transfer tax<\/h4>\n\n\n\n

The ECJ qualified the transaction as a restructuring within the scope of the Capital Accumulation Directive, i.e. Directive 2008\/7\/EC concerning indirect taxes on the raising of capital. This directive aims to prevent capital formation within the European Union from being hampered by indirect taxes. The decision particularly focused on Articles 4 and 5 of Directive 2008\/7\/EC.<\/p>\n\n\n\n

According to the ECJ, this was a restructuring protected by the directive, which generally could not be subject to indirect taxation. The exceptions provided for in the directive also did not apply in this specific case. It was particularly relevant that, although shares in a company were contributed, the properties legally remained with the same company. Thus, there was no change in ownership of the properties themselves. Likewise, the taxation could not be justified solely on the grounds of preventing tax evasion or avoidance.<\/p>\n\n\n\n

What significance the ruling could have for Austria<\/h4>\n\n\n\n

Even in Austria, property transfer tax can arise not only from the direct acquisition of a property, but also, under certain conditions, from the pooling of shares and changes of shareholders in property-owning companies. Of particular relevance here are the regulations in \u00a7 1 paragraph 3 of the Property Transfer Tax Act (GrEStG). Especially in the case of restructurings within a corporate group, this repeatedly leads to burdens in practice, even though the real estate economically remains within the corporate group.<\/p>\n\n\n\n

It is precisely on this point that the ECJ ruling is particularly exciting for Austria. If a process is protected by the Capital Accumulation Directive, taxation according to Austrian rules could be questionable under EU law.<\/p>\n\n\n\n

According to the professional contributions available, this particularly concerns restructurings of shares in property-owning corporations, e.g.:<\/p>\n\n\n\n