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With its decision of 27.11.2019 (V R 23/19), the Federal Fiscal Court ruled that the activity of a supervisory board member, who receives fixed remuneration without variable remuneration components, is not a taxable person for VAT purposes. In the Federal Fiscal Court’s view, the supervisory board member did not bear any economic risk associated with his activity and therefore, did not provide any services subject to VAT. The judgment should be transferable to limited liability companies, foundations, advisory boards and comparable supervisory bodies, and possibly also to management boards. The Federal Fiscal Court left open other case constellations, other than fixed remuneration. The Federal Fiscal Court also ruled that a self-billing invoice showing VAT only constitutes a tax liability in accordance to sec 14c para. 2 of the German VAT Act, if the recipient of the self-billing invoice is a taxable person.
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Even in the case of a share deal, a non taxable transfer of a going concern can be given in individual cases. This was recently clarified by the Federal Fiscal Court (BFH, judgement of 18.09.2019 – XI R 33/18). This case concerned a controlling company in a VAT group which transferred 100% of the controlled company’s shares. The Court found that, in these sorts of circumstances, if the acquirer of the shares goes on to establish a VAT group with the acquired company, this constitutes a sale of a going concern. Besides that, also other constellations beyond the VAT group are conceivable in which the sale of 100% of shares can lead to a non taxable transfer of a going concern.
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The Tax Court Thuringia regards the letting of car parking spaces to tenants of apartments to be a taxable supply. The judgement is not convincing in terms of content and contradicts the opinion of the tax authorities, as well as the case law of Germany’s highest tax court. If the Federal Fiscal Court follows the Tax Court Thuringia in the pending appeal proceedings, the ruling will be of considerable practical importance.
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