A factual managing director is a person which externally acts like a managing director or who actually manages a company due to his/her leading influence, but who is no member of a managing body (management, board of directors) and who is also not legally entitled to represent the legal entity vis-à-vis tax authorities on grounds of any other legal basis. While formally appointed managing bodies of corporations have always been subject to a liability as regards tax law, as laid down in section 9 Federal Fiscal Code (Bundesabgabenordnung, "BAO"), factual managing directors could not be made a claim on for taxes and duties in arrears due to a lack of legal basis until 31 December 2012. By providing a new section 9a BAO, this loophole should be closed. Hence, also persons who actually take influence on the meeting of fiscal obligations or on legal representatives of a company, are obliged to use this influence in a way that the tax duties are met. Otherwise they become liable for those taxes which cannot be collected as a consequence of their exertion of influence. Pursuant to section 323 para 33 BAO section 9a BAO entered into force on 1 January 2013. Further details regarding this entering into force of section 9a BAO can neither be found in the law itself, nor in parliamentarian documents.
Since section 9a BAO provides not only for liability, but also for explicit duties of conduct (influence is "to be taken in such way that these duties are fulfilled") subject to liability it was discussed in the learned ore whether cases could possibly be imagined in which the influence giving rise to liability could take place before 1 January 2013 and a liability claim on the basis of the new legal situation was nevertheless possible.
The Federal Fiscal Court (Bundesfinanzgericht, "BFG") yet again clarified that the statutory duty of conduct for factual managing directors has no retroactive effect. Now the exerting of influence which took place before 1 January 2013 and which is now frowned upon cannot lead to liability in the meaning of section 9a BAO (BFG 12 May 2014, RV/3100357/2013).