In October 2022, the Secondary Residence and Vacancy Tax Act (StZWAG) of the Austrian province of Styria came into force. It allows Styrian municipalities to levy a tax on vacant apartments (housing vacancy tax) based on a resolution of the municipal council. At the end of March 2023, the municipal council of the Styrian tourist municipality of Schladming decided to levy the constitutionally questionable tax.
Housing vacancy tax
The subject of the tax are premises suitably equipped for residential purposes, which can be used by the owner without significant modification to meet a housing need, even if only temporary (apartments), at which, according to the data of the Central Register of Residents, more than 26 calendar weeks in the year there is neither a report as a main residence nor as another residence.
The following are explicitly exempt from the obligation to pay the tax:
- apartments owned by a non-profit building, housing and settlement association;
- apartments owned by local authorities;
- buildings with up to three apartments, where the owners of the building have their main residence in one of the apartments;
- dwellings used for business purposes, including those belonging to agricultural and/or forestry enterprises;
- dwellings that are vacant for no more than 26 calendar weeks in a year on the occasion of necessary repair work;
- dwellings which are no longer used as a residence by the owners for health or age-related reasons;
- provident apartments for children, but not more than one provident apartment per child in Styria;
- apartments that are not rentable due to official orders;
- buildings with one or more apartments for which the Federal Office for the Preservation of Historical Monuments has issued a notice stating that they are listed buildings;
- dwellings owned or used by a foreign state or by organizations established on the basis of state treaties or by persons recognized as extraterritorial, insofar as these dwellings are used for the accommodation of diplomatic missions or for residential purposes for persons recognized as extraterritorial.
Who must pay the housing vacancy tax?
The persons liable to pay the levy are the owners of the dwelling, but in the case of a building lease, the persons entitled to the building lease.
Caution: Obligation for self-calculation!
Persons liable to pay the levy must calculate the levy themselves and notify the competent tax office of the self-calculated amount for each calendar year, the usable floor space of the dwelling and the calendar weeks without residence in the year by March 31 of the following year and pay it within four weeks of notification of the self-calculation.
Reversal of the burden of proof
The otherwise liable person must prove that one of the above exceptions applies. If the circumstances of the individual case make it unreasonable to expect the taxpayer to provide such proof, it is sufficient to establish prima facie evidence. With regard to the exception of provident housing, the person liable to pay the tax must prove that the tax has been paid for any other provisional housing for the same child in other municipalities in Styria for which there is a levy obligation in these municipalities. Preventive housing in municipalities in which no vacancy tax is levied shall not be taken into account.
Amount of vacancy tax
With regard to the amount of the levy, the Styrian legislator has also given the municipalities some leeway here; it may not exceed a maximum of EUR 1000 per calendar year for apartments with 100 m² of usable floor space and is to be reduced or increased accordingly depending on the actual size. In Schladming the local council has decreed the maximum value.
Attorney for real estate law
Attorney at Law Dr. Simon Harald Baier LL.M. advises on all questions in relation to a secondary residence, on business law and real estate law.