In a recent “express reply service" (Express-Antwort-Service, EAS), the Austrian Federal Ministry of Finance dealt with the tax treaty classification of payments for the provision of software. In particular, the EAS addresses the question of whether such payments can be subsumed under Art 12 of the tax treaty between Austria and China, which is based on Art 12 OECD Model 1977. The Ministry of Finance is overturning its previously held view, which means that software should no longer be included under the term “equipment" in Art 12 para 3 of the tax treaty from now on, and justifies this with a change of the commentary on Art 12 UN Model made in 2017. In this contribution, Christian Knotzer and Jürgen Romstorfer focus on the various questions raised by the EAS.
