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If a recipient of a supply has paid too much VAT to a supplier and his input VAT deduction fails, then the recipient is dependent on having the corresponding VAT amount refunded by the supplier. If this repayment under civil law also fails, the so-called Reemtsma claim can prove to be the best solution for the recipient. In a recent judgment of 7 September 2023 in the legal case Schütte (C-453/22) the ECJ clarifies that this claim also applies when the supplier invokes the statute of limitation under civil law against the recipient. At the same time, the ECJ restricts the correction by the supplier in accordance with sec. 14c of the German VAT Act and confirms a claim for interest by the recipient.
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The German Federal Fiscal Court (BFH) has ruled that no splitting requirement is applicable for the supply of rental services, which would require the supplies to be split into separate taxable (operating equipment) and VAT exempt parts (the letting of immovable property and buildings) pursuant to sec. 4 no. 12 sentence 2 UStG. In its decision of 22 March 2023, the BFH thus changes its case law in its implementation of the ECJ ruling in the proceedings C-516/21. Sec. 4 no. 12 sentence 2 UStG does not apply to the provision of permanently installed operating equipment if it is an ancillary supply to the VAT-exempt rental service as a main supply, which is VAT exempt pursuant to sec. 4 no. 12 sentence 1 lit. a UStG.
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“Being right and getting justice are two different things”. The success of appeals and legal remedies does not only depend on substantive law. Procedural and litigation law are also of crucial importance. The following recent decisions could be of critical significance in this respect: • Interpretation of decisions on appeals: (partial) decision on appeal and consequences for subsequent legal proceedings • Video hearing before the Fiscal Court and procedural error: proper composition of court • Accrual of 6% interest despite suspension of execution – is it unconstitutional? – Federal Fiscal Court proceedings pending • Hearing of oral evidence by the Fiscal Court.
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