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The planned amendments to the regulation on marketplace liability in the Annual Tax Act 2020 are contrary to the purpose of the OSS procedure. Online traders will be required to submit a German VAT-ID to their online marketplace operator. Online traders from other EU countries must therefore register in Germany for VAT purposes. This is precisely what the new OSS procedure was intended to avoid.
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Supplies in which the supplier transports goods to the customer and then installs them at the supplier’s premises are not subject to sec. 3 (4) of the German VAT Act. In other words, “assembly deliveries” are not “work deliveries”. The Federal Fiscal Court already decided the following in 2013: Only cases where goods not belonging to the supplier are processed can be qualified as work deliveries. The Federal Ministry of Finance is now incorporating this case law into the Administrative VAT Guidelines, thereby ensuring the long overdue clarification. The reverse charge scheme, according to sec. 13b of the German VAT Act, is thereby restricted. Foreign suppliers with projects in Germany will therefore have to check in future whether they are performing work deliveries or assembly deliveries. The latter will then lead to an obligation to register in Germany from 2021, at the latest, due to the fact that the reverse charge scheme does not apply.
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The long-awaited Federal Ministry of Finance letter on the retroactive effect of invoice correction and the deduction of input VAT, in the absence of a proper invoice, has now been published. The Federal Ministry of Finance’s letter implements the ECJ case law of 15 September 2016 in the cases of Senatex and Barlis 06, as well as other subsequent rulings. Accordingly, an incorrect invoice, which contains the five core characteristics, can now be corrected retroactively. In the instance of a presumed reverse charge case, showing VAT retroactively is also possible. A retroactive correction of an invoice is also possible in circumstances where the correction is made by cancelling and issuing a new invoice. Input VAT can also be deducted from an incorrect invoice without an invoice correction if the taxable person is able to provide objective proof in other ways. However, according to the Federal Ministry of Finance, showing VAT in an invoice is a key element and cannot be replaced by any other form of evidence. Furthermore, input VAT deduction, without an invoice, remains impossible.
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