VwGH: Personal hunting right is no right equivalent to real property

Mar 10, 2021 Benn-Ibler Rechtsanwälte

Several plots of land of the agricultural and forestry business assets co-owned by partners were sold. The external auditor then determined that the total purchase price of the property included a share for the transfer of the personal hunting right (Recht auf Eigenjagd) and, contrary to the opinion of the party's representative, held that the sale of this hunting right did not fall under Sec. 30 (1) of the Income Tax Act 1988 (Einkommensteuergesetz 1988, EStG 1988) and that the corresponding purchase price share was subject to the standard rate of taxation. The Supreme Administrative Court (Verwaltungsgerichtshof, VwGH) subsequently had to deal with the question of whether the proprietary hunting right was to be treated as a right equivalent to real property within the meaning of Sec. 30 (1) EStG 1988.

Pursuant to Sec. 30 (1) EStG 1988, the term land includes land, buildings and rights subject to the provisions of civil law on land (rights equivalent to real property). This parenthetical expression was added in 2012 in the course of the 2012 Tax Amendment Act (Abgabenänderungsgesetz 2012). The result of the interpretation of the term is that the law only considers rights to be "rights equivalent to real property" that can be sold in isolation, which presupposes that such rights must be independently transferable. Likewise, no rights other than those that can be recorded in the land register can be regarded as equivalent to real property. Thus, this only includes building law.

In addition to the interpretation of this term, the question of the scope of the tax base for real estate taxation was also answered with regard to rights that pass without further action with the transfer of real estate ownership:

Easements and hunting rights as real rights increase the value of the "land" and are typically reflected in the amount of the sale proceeds; they are inseparable from the real property and cannot be acquired as independent real rights. Personal hunting rights, which are determined by means of decision, are not included in the concept of "land" within the meaning of Sec. 30 (1) EStG 1988 and are subject to the standard rate of taxation upon sale.

VwGH Ra 2019/15/0066-6 (10 September 2020)