On 5 June 2018 an amending protocol ("Amending Protocol") to the double tax treaty concluded between Austria and Russia ("DTT AT/RU") was signed. It, inter alia, provides for changes of the articles on dividends, capital gains, elimination of double taxation and exchange of information. Further, it introduces new provisions on assistance in the collection of taxes and on limitation on benefits.
As regards dividends, art. 10(2)(a) of the DTT AT/RU as currently in force provides that the tax levied by the source state shall not exceed 5% if the beneficial owner of the dividends is a company (other than a partnership) which holds directly at least 10% of the capital of the company paying the dividends and the participation exceeds USD 100,000 or an equivalent amount in any other currency. Pursuant to the Amending Protocol, the requirement that the participation has to exceed USD 100,000 shall be abolished. Further, the definition of the term "dividends" shall be broadened so as to also encompass payments on units of mutual investment funds or similar collective investment vehicles (other than collective investment vehicles organized primarily for investing in immovable property, if at least 10% of the units or other rights of such a vehicle belongs to the beneficial owner of that income).
A real estate clause shall be added to art. 13 of the DTT AT/RU, pursuant to which gains from the alienation of shares or similar rights deriving more than 50% of their value directly or indirectly from immovable property situated in the source state may be taxed in the source state. This shall not apply to gains derived from the alienation of shares in the course of a corporate reorganization or of shares listed on a registered stock exchange. While in case of Austrian residents double taxation is generally eliminated by application of the exemption method, the credit method shall apply to such capital gains.
Art. 26 on exchange of information shall be replaced by an exchange of information clause which corresponds to that contained in the OECD Model Convention (but provides that a contracting state shall not be obliged to supply information which could be contrary to the basic rights granted by a state, in particular in the area of data protection).
The Amending Protocol contains a new article 26(1) on the assistance in collection of taxes to the extent needed to ensure that any exemption or reduced rate of tax granted under the DTT AT/RU shall not be enjoyed by persons not entitled to such benefits. The competent authorities of the contracting states may by mutual agreement settle the mode of application of this article.
Further, the Amending Protocol provides for a new article 26(2) on limitation of benefits. Pursuant thereto, a resident of a contracting state shall not receive the benefit of any reduction in, or exemption from, tax provided for in the DTT AT/RU by the other contracting state if the main purpose or one of the main purposes of such resident or a person connected with such resident was to obtain the benefits of the DTT AT/RU.
The provisions of the Amending Protocol will become effective at the earliest as of 1 January 2019.