In a recent decision, the Austrian Supreme Administrative Court held that a refund of Austrian withholding tax to a non-resident entrepreneur hiring out labor to an Austrian contract partner can be made dependent on whether the taxing right of Austria concerning the wages of the hired-out employees included in the personnel leasing fees is fully secured, despite Austria not having a taxing right over the non-resident’s business income stemming from the transaction. Daniel W. Blum examines whether this decision constitutes an implicit court mandated treaty override by Austria.
