FTA publishes Circular Letter 48 "Forfeiture of the right of natural persons to a refund of withholding tax pursuant to Article 23 VStG".

According to circular letter 48, the right of natural persons to claim a refund of withholding tax pursuant to Article 23 of the VStG in the version of 28. As of 1 September 2018, the obligation to declare (prerequisite for the refund of withholding tax) is also deemed to be fulfilled if the income subject to withholding tax is not declared in the tax return, but is subsequently declared by the taxpayer in an assessment, audit or post-taxation procedure that has not yet been legally concluded or is added to the income or assets by the competent tax authority on its own assessment (Art. 23 (2) VStG). The prerequisite for this is that the declaration of the tax factors was merely negligently omitted.

The new circular letter defines the concept of negligence as undue carelessness, taking into account the circumstances and personal circumstances (education, experience, intellect). If the negligent non-declaration is evident from the files, the tax authority will grant the refund without further verification. Otherwise, the taxpayer must demonstrate, or at least make it credible, that the omission was negligent. The expiry of the refund claim after 3 calendar years (Art. 32 (1) VStG) and the new 60-day period under Art. 32 (2) VStG continue to apply unchanged. The newly inserted paragraph 2 of Art. 23 VStG can also be applied to assessments at dutiful discretion. Finally, the reporting procedure is not excluded by Art. 23 (2) VStG if all other conditions are met.

The new paragraph 2 of Article 23 VStG is applicable to claims since 1 January 2014 on which no final decision has yet been taken (Article 70d VStG). Circular letter No 40 continues to apply to cases covered by the old law.

The circular letter can be downloaded here.