OGH: "Inheritability" of claims for damages
The Austrian Supreme Court (Oberster gerichtshof, OGH) decided in the present case that the legal status of an heir only entitles him to assert those disadvantages to which the testator was also entitled in connection with a tortfeasor.
In the case at hand, according to the plaintiff's statements, the damaging act (the tax advice given by the defendant tax consultant in breach of duty) had already been committed before the death of the testator, but the damage as an additional income tax burden had only occurred in the estate of the heir. Due to incorrect advice, the depreciation for wear and tear (Abschreibung für Abnützung, AfA) of the property inherited from the deceased was not calculated on the basis of the fictitious acquisition costs, but on a unit amount.
Highly personal rights and duties expire upon death and are not inheritable (Section 1448 of the Austrian General Civil Code - Allgemeines bürgerliches Gesetzbuch, ABGB). Income tax counts as a personal tax, thus the income tax liability expired with the death of the taxpayer, which is why her assets were no longer disadvantaged by the income tax burden. The damage claimed by the plaintiff - the overpayment of income tax in 2017 - does not result from a derivatively acquired claim of the decedent. Even if the deceased had survived, the damage would not have been reflected in her assets due to the personal income tax, even if the plaintiff's disadvantage was equal in amount to a hypothetical additional tax burden on his legal predecessor.
According to case law, obligations to pay damages also pass to the universal successor if the act of damage was committed before death, but the result only occurred afterwards. However, the plaintiff did not have a contractual relationship with the defendant tax consultant. The defendant was required to fulfil the duties of a tax consultant on the basis of a contract with the deceased. In the event of defective management, the tax consultant is liable under Secs. 1009, 1010, 1012 and 1299 ABGB. The obligation to pay damages now exists against the plaintiff as a contractual partner, since the plaintiff, as universal successor, has entered into the rights of the deceased.
The legal position acquired corresponds to that of the deceased, which is why the plaintiff can only assert disadvantages to which she was also entitled. As the damage was due to the plaintiff's personal tax liability, he was not to be regarded as the directly injured party.
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