This report covers a new law in Austria that changes the treatment of employees receiving certain shares as incentive/deferred compensation.
On 29 June 2017, Austria’s parliament adopted the new Worker Participation Foundation Act 2017, which, among other things, provides for:
The new law enters into force from 1 January 2018.
Under certain conditions, employees receiving shares under the new rules will not be subject to income wage tax and social security contributions on the grant of those shares. This should lighten their tax burdens and enhance their interest in this form of compensation.
The new rules are expected to encourage employees to deepen their commitment to the companies they work for and incentivize performance by means of developing “anchor” shareholders (via the Worker Participation Foundation) who are given institutional voting interests. This could prevent hostile take-overs, strengthen Austria’s future economic position, and safeguard Austrian jobs.
“Stock company” employers should take into account the new equity program opportunities.
Starting from 1 January 2018, employees who are granted shares free-of-charge or at a reduced price up to an amount equal to EUR 4,500 per calendar year will not be subject to income wage tax and social security contributions on the grant of those shares, as long as the shares are held in trust by the Worker Participation Foundation until the end of their employment service. Grants are to be made either to all employees who are eligible or to groups of employees defined according to general (non-discriminating) criteria – e.g., all employees with more than three years of employment with the company, all “field” employees, etc., while “all managers” or “only directors” would not be valid criteria.
Moreover, the coverage of administration costs by the Worker Participation Foundation does not generate a taxable benefit-in-kind. Examples of the administration costs paid by the Foundation are the costs for running the trusteeship, stock deposit costs, etc. – these would not be taxable to the participating employees.
Shares issued from the Worker Participation Foundation to the employees after they complete their service – even if they were acquired over several years – shall be treated as “tax neutral” to the participating employee, that is, exempt from Austrian income and social taxes.
The new regulations apply only to “stock companies” (that is, stock “corporation” companies and not limited liability companies), in German: “Aktiengesellschaft”. The company must not be publicly-traded. As such, most employees are not affected. It would be desirable that the new government rectify this imbalance by means of alternative tax saving models that would be accessible by all other employees otherwise excluded as a result of these new regulations.
The new Worker Participation Foundation will be entitled to hold shares of the company itself. However, the amount of shares is limited to 10 percent of the voting rights of the company. Subsequently, those shares must be held in a trust – as noted above – and transferred to the employees according to a plan (over a period of several years). The transfer of shares to employees over several years will be required – e.g., in order to cover RSU programs or stock option programs. These usually run over the course of three or five years. The grant of shares and other property by the company to the Foundation are:
The cost of the shares – either book value or current market value (if just acquired) – may be claimed as a corporate income tax deduction for Austrian income tax purposes.
1 See (in German), click here.
The information contained in this newsletter was submitted by the KPMG International member firm in Austria.
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