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Not every grant is subject to VAT. The Federal Fiscal Court‘s decision of 18 November 2021 (V R 17/20) marks a change in its jurisprudence. The assessment of whether a grant is subject to VAT is not only based on the underlying legal relationship between the grantor and the recipient of the grant. The “economic reality” of the situation is also crucial.
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The war in the Ukraine is causing worldwide horror but has also given rise to a wave of solidarity. Both private taxable persons and public sector companies are providing support in a variety of ways. For example, sports halls and holiday flats are being turned into emergency shelters. Taxable persons are helping through in-kind donations and money. The tax authorities are supporting this collective commitment of society through (value added) tax relief.
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The Federal Fiscal Court granted a municipality input VAT deduction from the construction of a suspension rope bridge, despite no consideration having been charged for the use of the bridge. Following the jurisprudence of the ECJ in the legal case Sveda, the Federal Fiscal Court recognised the direct and immediate link due to the proximity of the bridge to paid parking spaces. A very welcome windfall for the plaintiff municipality. However, the Federal Fiscal Court’s decision of 20 October 2021 (XI R 10/21), which was only published last week, is not just interesting for legal entities under public law. Rather, the Federal Fiscal Court provides numerous indications that input VAT deduction may also be possible for procured supplies which, at first glance, are not directly and immediately linked to taxable output supplies.
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