In the framework of the EAS (Express Answer Service), the Federal Ministry of Finance dealt with the material scope of application of the tax treaty between Austria and France regarding inheritance and gift taxes. EAS 3426 deals with the question of whether real estate transfer tax triggered by a gift of real estate by a resident of Austria to her child residing in France is subject to the inheritance tax treaty with France. The Ministry primarily argued with the lack of similarity of the taxable objects of the real estate transfer tax and the inheritance and gift tax. Stefanie Gombotz concludes that, contrary to the assumption of the Ministry, a comparability test of the real estate transfer tax with the inheritance and gift tax for the taxation of gifts of real estate results in an identical object of taxation of the two taxes. The repeal of the exemption for gifts of real estate in the Real Estate Tax Act 1987 (GrEStG 1987) created a new tax liability for gifts of real estate in order to avoid non-taxation of such gifts. It is therefore reasonable to conclude that the real estate transfer tax on gifts of real estate is an identical tax to the inheritance and gift tax, thus leading to the applicability of the inheritance tax treaty with France.
