New Rules on the Tax Underpayment Surcharge

As a general rule, financial criminal proceedings would have to be initiated in such a case. However, under the Austrian Fiscal Offences Act (Finanzstrafgesetz, FinStrG), the authorities may refrain from doing so and instead impose a lump-sum tax underpayment surcharge. If this surcharge is paid in full and within the prescribed period, it has the effect of exempting the taxpayer from prosecution. The scope of application of the tax underpayment surcharge was significantly expanded by the Anti-Fraud Act 2025 (Betrugsbekämpfungsgesetz 2025).

Additional tax liabilities of up to EUR 100,000

The tax authority is entitled to impose a tax underpayment surcharge if additional tax liabilities identified in the course of a tax audit give rise to the suspicion that a fiscal offence has been committed, provided that such additional tax liabilities do not exceed a total of EUR 33,000 for any individual year (assessment period) and EUR 100,000 in aggregate.

The tax underpayment surcharge and the underlying additional tax liabilities must be paid in full within one month of their assessment. With regard to the additional tax liabilities underlying the tax underpayment surcharge, the one-month payment period may be extended to a maximum of six months if a payment arrangement is granted. By contrast, no payment deferral may be granted for the tax underpayment surcharge itself, which must be paid in full within the one-month period.

Agreement with the fiscal criminal authority

If the total additional tax liabilities assessed do not exceed EUR 50,000, the tax underpayment surcharge amounts to 10% of the total additional tax liability. If, however, the total additional tax liabilities assessed exceed the EUR 50,000 threshold, the tax underpayment surcharge is calculated at a uniform rate of 15% of the entire additional tax liability and not merely on the portion exceeding the threshold.

According to the implementing decree, where the total additional assessment exceeds EUR 100,000 and action under the FinStrG is intended, prior agreement with the fiscal criminal authority must be obtained.

There are various grounds on which the imposition of a tax underpayment surcharge is excluded. For example, the surcharge may not be imposed if financial criminal proceedings concerning the relevant taxes are already pending or if a voluntary disclosure has been submitted. The surcharge is also excluded where punishment is necessary to deter the offender from committing further fiscal offences.

Exemption from punishment for fiscal offences

If the tax underpayment surcharge and the underlying additional tax liabilities are in fact paid in full with the effect of discharging the relevant payment obligations, the fiscal offences committed in connection with those additional tax liabilities are exempt from punishment.

If the additional tax liabilities on which the assessed tax underpayment surcharge is based are subsequently reduced, for example as a result of appeal proceedings, the tax underpayment surcharge must likewise be reduced accordingly, retroactively and ex officio.