This thesis deals with the so-called „Ausschüttungsfiktion“, a concept applied in the Austrian Business Reorganisation Act, providing for a deemed profit distribution. The term „deemed profit distribution“ has been introduced in section 9 para 6 in course of implementing the Business Reorganisation Act, applying to conversions into partnerships. Subsequently, the concept has also been applied to withdrawals leading to negative book values in course of contributions of tax supported assets according to section 18 para 2 subpara 1 as well as to import mergers according to section 3 para 1 subpara 3 of the Business Reorganisation Act. The deemed profit distribution has the purpose to secure taxation at the level of the shareholder. Whereas the application of deemed profit distribution was originally tied to profits determined according to the rules of the commercial code, this paradigm concept changed over the years, leading to the application of the concept based on a purely tax driven size called „profit capital“.
This thesis will highlight the historical development of the deemed profit distribution. Additionally, it will be examined whether the revised concept of deemed profit distributions is effective in covering all occuring loopholes and to which extent it may infringe the fundamental principle of the Business Reorganisation Act, which is to refrain from taxing hidden reserves if a reorganisation of a legal form takes place. Eventually, it shall be examined whether the principle of „bona fida“ will have to be applied to open tax assessments with respect to recent jurisprudence of the Highest Administrative Court concerning deemed profit distributions according to section 9 para 6 of the Business Reorganisation Act (VwGH 25. 7. 2013, 2012/15/0004).