Tax & Legal

The German Federal Ministry of Finance has commented on the changed requirements for intra-community supplies resulting from the Act on Further Tax Incentives for Electromobility and on the Amendment of other Tax Regulations – Finance Act 2019: “FA 2019” - amending the VAT Act Application Ordinance accordingly.

For the purposes of establishing whether an VAT-exempt intra-Community supply had been made, where other evidence exists establishing that the motor vehicles had been sent to their destination in the other EU country, the assumption of the absence of documentary evidence could not contradict such other evidence.

Pending introduction of the new VAT system, four short-term 'quick fixes' will be made regarding the VAT aspects of trade between the member states. Discussions are ongoing on a definitive VAT system to replace the current 'transitional' VAT arrangements, which have been applied since 1993.

The ECJ held that an exempt intra-community supply should not be taxable merely because of a missing VAT registration No. where there is no suggestion of evasion and the other conditions for exemption are fulfilled.

The finance ministry has issued a decree forbidding foreign businesses from reclaiming the VAT invoiced to them on exports or intra-community supplies from Germany.

The finance ministry has amended its VAT Implementation Decree to allow interruption of the delivery flow for technical transport reasons only, if the intra-community supply or export sale is to remain VAT-free.

The Supreme Tax Court has held that the required documentation in support of a tax-free intra-community supply cannot be substituted by other evidence.

The Supreme Tax Court has held that a cash sale as a tax-free intra-community supply places a special duty of care on the seller to ensure that there is no evasion, even if cash sales are customary in the circumstances.

The ECJ has held that failure to produce the VAT ID No. of the customer does not automatically render the intra-community supply taxable if the propriety of the transaction can be demonstrated by other means.

The Supreme Tax Court has held that a supplier who honestly believed in the propriety of the documents before him showing a sale of goods to Spain could not be held liable for the VAT when the carrier diverted them to an end customer in France.

The Supreme Tax Court has held that an intra-community supply is subject to VAT if the supplier deliberately disguised the identity of the customers so that they could evade VAT in their own member states.

The finance ministry has followed an ECJ and a Supreme Tax Court case in a decree refusing tax exemption on intra-community supplies to traders in breach of formalities, despite ability to demonstrate the actual delivery to a customer in another member state, if the trader has concealed the identity of his customer, thus facilitating a VAT fraud in the country concerned.

The Supreme Tax Court has held that a CMR waybill can be acceptable documentation of a delivery of goods to another EU member state if it notes the route details required for VAT exemption.

The ECJ has held that the intra-community supply exemption is not available to a trader who falsifies invoices in order to conceal the identity of the purchasers from their own VAT authorities.