Air Transport Levy Act

Full legal text of the Air Transport Levy Act, version dated 29.10.2020

Note with regard to the following provision:

Re: reference period, see § 16 para 7.

Full title

Federal Act Introducing an Air Transport Levy (Air Transport Levy Act - FlugAbgG)
Original version: Federal Law Gazette (Federal Law Gazette) I No. 111/2010 (National Council: GP XXIV RV 981 AB 1026 page 90. Federal Council: 8437 AB 8439 page 792.)
[CELEX No.: 32010L0012]

Amendment

Federal Law Gazette I No. 76/2011 (National Council: GP XXIV RV 1212 AB 1320 page 114. Federal Council: 8524 AB 8558 page 799.)
Federal Law Gazette I No. 112/2012 (National Council: GP XXIV RV 1960 AB 1977 page 179. Federal Council: 8815 AB 8823 page 815.)
[CELEX-No.: 32006L0112, 32008L0008, 32009L0133, 32010L0045, 32011L0016]
Federal Law Gazette I No. 13/2014 (National Council: GP XXV RV 24 AB 31 page 12. Federal Council: 9140 AB 9141 page 827.)
Federal Law Gazette I No. 44/2017 (National Council: GP XXV RV 1524 AB 1561 page 171. Federal Council: AB 9760 page 866.)
Federal Law Gazette I No. 104/2019 (National Council: GP XXVI IA 985/A AB 692 page 88. Federal Council: AB 10252 page 897.)
Federal Law Gazette I No. 96/2020 (National Council: GP XXVII RV 287 AB 336 page 43. Federal Council: 10363 AB 10380 page 910.)

Other parts of the text

The National Council has resolved as follows:

Note with regard to the following provision:

Re: reference period, see § 16 para 7.

Text

Subject matter of the levy

§ 1. The departure of a passenger from a domestic airport using a motorised aircraft shall be subject to the air transport levy.

Note with regard to the following provision:

Re: reference period, see § 16 para 7.

Definition of terms

§ 2. (1) 'Motorised aircraft' within the meaning of this Federal Act shall be aeroplanes and rotary-wing aircraft for which mineral oil is used as a fuel.

(2) An 'airport' is a public aerodrome intended for international air traffic having the necessary facilities for such purpose (§ 64 of the Austrian Aviation Act (LFG), Federal Law Gazette No. 253/1957).

(3) An 'aircraft operator' is a person operating an aircraft for their own account and having the corresponding authority to make such dispositions with respect thereto as constitute the prerequisite to such operations (§ 13 LFG).

(4) 'Departure' shall mean the take-off of a motorised aircraft from a domestic airport.

(5) 'Destination aerodrome' shall mean the place located within Austria or abroad at which a passenger's flight is scheduled to end. The aerodrome at which any stopover occurs shall not be deemed the 'destination aerodrome'. A stopover shall be deemed an interruption to the passenger's flight for a period of less than 24 hours where departure to an aerodrome other than the aerodromes of the preceding departures follows such interruption. The destination aerodrome need not differ from the departure airport (sightseeing flight).

(6) The flight crew shall include all persons who depart on an aircraft and who are charged with the following:

           1. piloting the aircraft; or

           2. technical oversight, maintenance or repair of the aircraft; or

           3. the security of passengers; or

           4. catering to passengers' requirements.
 

Exemption from tax liability

§ 3. The following shall be exempt from the air transport levy:

           1. The departure of passengers under the age of two years not occupying their own seat;

           2. The departure of persons who are members of the flight crew or who are being flown as flight-crew members of another flight to or from their place of deployment;

           3. Departure for training purposes or for the purpose of parachute jumps;

           4. Departure exclusively for military, medical or humanitarian purposes;

           5. The departure of transit and transfer passengers following a stopover at a domestic airport having led to a scheduled interruption of such passengers' flight of less than 24 hours;

           6. Departure following an unscheduled landing;

           7. The departure of an aircraft having a maximum-permissible take-off weight up to and including 2,000 kg;

           8. The departure of government aircraft within the meaning of Article 3 of the Convention on International Civil Aviation, Federal Law Gazette No. 97/1949.

Note with regard to the following provision:

Re: reference period, see § 16 para 7.

Calculation of air transport levy

§ 4. The amount of air transport levy shall be based on the location of the destination aerodrome and the number of passengers carried.

Tariff

§ 5. (1) The air transport levy shall total EUR 12 per passenger.

(2) By way of derogation from para (1), the air transport levy shall total EUR 30 per passenger if the distance between the domestic airport from which the aircraft departs and the destination aerodrome is less than 350 km. The said distance shall be established applying the great-circle-distance method.

(3) The amount of levy for short-haul flights includes any value added tax payable thereon.

Note with regard to the following provision:

Re: reference period, see § 16 para 7.

Tax debtor

§ 6. The tax debtor shall be the aircraft operator operating the departure. The aerodrome operator of the domestic airport from which departure takes place shall be liable for the levy.

Tax liability and collection of the levy

§ 7. (1) The tax liability shall accrue at the end of the calendar month in which the departure has taken place.

(2) The tax debtor shall be required to undertake its own calculation of the levy and, at the latest on the 15th day (the due date) of the second calendar month following the calendar month in which the tax debt accrued (the notification period), submit a statement to the Austrian Tax Office (Finanzamt). Submission of such statement must be made electronically.

(3) The tax debtor shall be required to pay the air transport levy by the due date (para 2) at the latest.

(4) By 31 March of each calendar year, the tax debtor shall be required to forward electronically to the Austrian Tax Office a tax return for the previous calendar year.

(5) Any levy imposed pursuant to § 201 of the Austrian Federal Fiscal Code (BAO), Federal Law Gazette No. 194/1961, shall be due for payment on the date stated in para 2.

Tax representative

       § 8. (1) 1. An aircraft operator with place of residence, registered office or permanent establishment in a Member State of the European Union outside Austria may instruct a tax representative licensed under the terms of para 3.

           2. An aircraft operator not having a place of residence, registered office or permanent establishment either in Austria or in a Member State of the European Union shall be under a duty, prior to undertaking a first departure from a domestic airport triggering a tax liability, to instruct a tax representative licensed under the terms of para 3.

(2) The tax representative shall be required to fulfil the obligations under tax law of its represented client. The tax representative shall be authorized to exercise the rights held by its client. It shall be liable for the levy. The tax representative must also be the party authorized to accept service.

(3) Only the following may be appointed as tax representatives:

           1. chartered accountants, attorneys-at-law, notaries or business operators within the meaning of § 2 para 1 of the Austrian Value Added Tax 1994 (UStG 1994), Federal Law Gazette 663/1994, respectively with registered office or place of residence within Austria; or

           2. international associations of airlines with an Austrian branch establishment entered in the Austrian Commercial Register;

provided they are in a position to fulfil the relevant duties under tax law.

(4) The aircraft operator shall be required to notify the following to the Austrian Tax Office (Finanzamt Österreich):

           1. the tax representative which it has instructed;

           2. the registered office or place of residence of the tax representative;

           3. the tax ID and VAT reference under the terms of Article 28 UStG 1994 of the tax representative.

Aircraft operators under the terms of para 1 sub-para 2 must comply with said duty of notification prior to operating their first departure from a domestic airport triggering a tax liability.

Registration of aircraft operators

§ 9. (1) Aircraft operators must make an application for registration to the Austrian Tax Office at the latest by the time of operating their first departure from a domestic airport triggering a tax liability. The following shall be indicated in the application for registration:

           1. the name of the aircraft operator;

           2. the registered office or place of residence of the aircraft operator;

           3. a list of domestic airports from which a departure is intended.

(2) If an aircraft operator has neither a place of residence nor a registered office nor a permanent establishment within Austria, the application for registration must additionally indicate the name and registered office or place of residence of the tax representative (§ 8).

(3) The aircraft operator must immediately notify the Austrian Tax Office of the following:

           1. changes of details within the meaning of paras 1 or 2;

           2. cessation of operation of departures from a particular domestic airport;

           3. the intended operation of departures from domestic airports not yet included on the list;

           4. cessation of payments, threatened or actual insolvency or overleverage or filing of a petition for institution of insolvency proceedings.

(4) The Austrian Tax Office shall issue and notify a tax ID to the registered aircraft operator.

(5) The registration process shall be conducted by the Austrian Tax Office.

Duties of aircraft operators

§ 10. (1) Aircraft operators shall be under a duty to keep electronic records in German or English which shall indicate, on a precise daily basis:

           1. the number of passengers having departed from a domestic airport;

           2. the flight number, if a flight number has been allocated to the departure operated;

           3. the destination aerodrome within the meaning of § 2 para 5 of the passengers departing from a domestic airport;

           4. the date and time of the departure;

           5. the name of the domestic airport from which the departure took place.

(2) The record-keeping duty shall also comprise data of persons whose departure is exempt in accordance with the terms of § 3 sub-paras 1 – 5. These shall be reported separately. By way of derogation from para 1, the record-keeping duty shall not apply if a departure (§ 2 para 4) does not trigger a tax liability.

(3) At the latest by the 15th day of the second calendar month following the calendar month in which the tax liability accrued, the aircraft operator shall be under a duty to forward the following data for a calendar month, aggregated by domestic airport, whereby the operator's tax ID (§ 9 para 4) shall also be indicated:

           1. ICAO code and tax ID of the aircraft operator;

           2. in the absence of an ICAO code, the identification of the aircraft operator;

           3. name of the domestic airport from which the departure took place;

           4. month and year for which the report is being forwarded;

           5. number of departing passengers, excluding members of the flight crew (§ 2 para 6) and excluding passengers under the age of two years not occupying their own seat (§ 3 sub-para 1), in each case indicating the numbers attributable to the individual departures, having regard to the terms of § 5 para 3;

               a) with a destination aerodrome within the short-haul range as set out in Annex 1, whereby passengers covered by the terms of § 5 para 2 shall be indicated separately;

               b) with a destination aerodrome within the medium-haul range as set out in Annex 2;

                c) with a destination aerodrome situated within a national territory or territory which is listed neither in Annex 1 nor in Annex 2, including an indication of the destination aerodrome;

           6. amount of levy;

           7. number of:

               a) passengers under the age of two years not occupying their own seat;

               b) persons being flown as flight-crew members of another flight to or from their place of deployment;

                c) departing persons with tax exemption under the terms of § 3 sub-paras 3 and 4;

               d) transfer passengers.

Data must be forwarded electronically.

(4) By the 15th day at the latest of the calendar month following the calendar month in which the tax liability accrued, the aircraft operator shall be under a duty to forward to the operator of the domestic aerodrome from which it shall have operated taxable departures in the relevant period the data stated in para 3 sub-paras 1 – 7, aggregated for a calendar month.

Duties of aerodrome operators

§ 11. (1) The operator of the domestic airport from which a departure takes place shall be under a duty to keep electronic records which shall indicate the following on a precise daily basis:

           1. the names of the aircraft operators which have operated departures;

           2. the flight numbers, if flight numbers have been allocated for operated departures;

           3. the aerodromes which were the scheduled destination aerodromes for the departures;

           4. the number of departing passengers;

           5. the dates and times of the departures.

(2) The record-keeping duty shall also comprise data of persons whose departures are exempt in accordance with the terms of § 3 sub-paras 1-5. These shall be reported separately. By way of derogation from para 1, the record-keeping duty shall not apply if a departure (§ 2 para 4) does not trigger a tax liability.

(3) An aerodrome operator shall be under a duty to verify the data which it receives from the aircraft operators (§ 10 para 4) and to reconcile the same with its own data.

(4) An aerodrome operator shall be under a duty to forward a summary of the reconciled data to the Austrian Tax Office at the latest by the 15th day of the second calendar month following the calendar month in which the departure has taken place. Records must be forwarded electronically.

(5) Communication of records pursuant to para 4 must include the following data, aggregated by aircraft operator:

           1. ICAO code of aircraft operator;

           2. in the absence of the ICAO code, the name, address, postcode and country of the aircraft operator;

           3. month and year for which the report is being forwarded;

           4. number of departing passengers excluding members of flight crew (§ 2 para 6) and excluding passengers under the age of two years not occupying their own seat (§ 3 sub-para 1);

           5. number of:

               a) passengers under the age of two years not occupying their own seat;

               b) persons who are being flown as flight-crew members of another flight to or from their place of deployment;

                c) transfer passengers.

(6) By way of derogation from para 5, with regard to those aircraft operators which have operated departures triggering a tax liability and which have not provided the aerodrome operator with any data within the meaning of § 10 para 4, the aerodrome operator shall be required to forward the following records:

           1. ICAO code of aircraft operator;

           2. in the absence of an ICAO code, the name, address, postcode and country of the aircraft operator;

           3. month and year for which the report is being forwarded;

           4. flight number or registration number of the aircraft;

           5. date and time of departure as scheduled;

           6. flight destination by means of IATA code or ICAO code of the aerodrome;

           7. number of departing passengers excluding members of the flight crew (§ 2 para 6) and excluding passengers under the age of two years not occupying their own seat (§ 3 sub-para 1);

           8. number of:

               a) passengers under the age of two years not occupying their own seat;

               b) persons who are being flown as flight-crew members of another flight to or from their place of deployment;

                c) transfer passengers;

           9. number of passengers per destination (next stop according to destination) by means of IATA code or ICAO code of aerodrome.

(7) Where the aerodrome operator forwards the reconciled data in a correct, complete and timely manner, then the aerodrome operator shall no longer be liable under the terms of § 6 for the levy pertaining to the period for which the data shall have been transmitted.

Note with regard to the following provision:

Re: reference period, see § 16 para 7.

Power to issue ordinances

§ 12. The Federal Minister of Finance is empowered to specify by way of ordinance the content of and procedure for electronic communication of the following:

           1. the application pursuant to § 7 para 2;

           2. the tax return pursuant to § 7 para 5;

           3. the records of the aircraft operator pursuant to § 10 para 3; and

           4. the records of the aerodrome operator pursuant to § 11 para 4.

The ordinance may specify that the tax debtor and the aerodrome operator shall be required to utilise a particular public or private transmitting agency.

Note with regard to the following provision:

Re: reference period, see § 16 para 7.

References to other provisions of law

§ 13. In so far as this Federal Act refers to provisions of other Federal Acts, these shall be applicable as from time to time amended.

Note with regard to the following provision:

Re: reference period, see § 16 para 7:

References to persons

§ 14. In respect of references to persons used in this Federal Act, the form of reference selected shall apply to both genders.

Implementation

§ 15. The Federal Minister of Finance is charged with implementing this Federal Act. The Federal Minister of Finance, jointly with the Federal Minister of Transport, Innovation and Technology, shall evaluate the impact of introduction of the Air Transport Levy Act on the aviation sector and developments in terms of revenues from the air transport levy by 30 September 2012. A further evaluation is required to take place by 30 September 2014.

Entry into force

§ 16. (1) This Federal Act shall enter into force on 1 January 2011.

(2) Where a departure is not the subject of a legal transaction, then the levy shall apply to departures taking place after 31 March 2011. If a departure is the subject of a legal transaction, then the levy shall be applied to all such legal transactions concluded after 31 December 2010 where the departure takes place after 31 March 2011.

(3) § 3 sub-para 7, § 8 para 1 and para 4, § 9 para 1, § 10, § 11 and § 12, respectively by way of the Federal Act published in Federal Law Gazette I No. 76/2011, shall enter into force on 1 January 2011.

(4) § 5 paras 1 and 3, respectively by way of Federal Act published in Federal Law Gazette I No. 112/2012, shall enter into force on 1 January 2013.

(5) § 5 paras 1 and 3, respectively by way of Federal Act published in Federal Law Gazette I No. 44/2017, shall enter into force on 1 January 2018.

(6) § 7 para 2 and para 4, § 8 para 4, § 9 para 1, para 3, para 4 and para 5, § 10 para 3, § 11 para 4, respectively by way of Federal Act published in Federal Law Gazette I No. 104/2019, shall enter into force on 1 July 2020.

(7) § 5 paras 1 and 2 and § 10 para 3 sub-para 5, respectively by way of Federal Act published in Federal Law Gazette I No. 96/2020, shall enter into force on 1 September 2020. These provisions shall apply to departures of passengers from a domestic airport after 31 August 2020. With regard to departures up to 31 August 2020, § 5 and § 10 para 3 sub-para 5 of the Air Transport Levy Act, respectively by way of Federal Act published in Federal Law Gazette I No. 104/2019, shall continue to apply. The latter shall furthermore apply in cases where a departure after 31 August 2020 is the subject of a legal transaction concluded before 1 September 2020.
 

Annex 1

Short-haul destination aerodromes

Short-haul destination aerodromes are aerodromes situated in the following states and territories:

Annex 2

Medium-haul destination aerodromes

Medium-haul destination aerodromes are aerodromes situated in the following states and territories: