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In principle, only the person who has the right to dispose of the imported goods when the customs declaration is filed may claim import VAT as input VAT. In 2019, the UK authorities HMRC startled companies and trade organiza-tions. Since this rule has not always been adhered to in the past, HMRC not only wanted to enforce the rule more strictly but (perhaps unintentionally?) tightened it significantly. Having retained its view in 2020 – despite a large number of submissions from the business community – HMRC is now taking a significant step backwards. However, the deduction of import VAT remains demanding. Taxable persons should act with due diligence.
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The apportionment of input VAT deduction for mixed-use buildings has repeatedly been the subject of fiscal court proceedings. The German Federal Fiscal Court now states: The taxpayer is not bound to the proportion chosen if it transpires later that it is not appropriate. The taxpayer therefore has a de facto right of choice in these circumstances. The burden of proof as to whether the proportion according to the square footage is more accurate than the allocation according to the turnover lies with the tax office. In the case of significant differences in the equipment of mixed-use buildings, the input VAT is to be allocated according to the (object-related) proportion of the turnover.
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Can input VAT deduction be achieved by means of a so-called upstream holding company? This question was referred to the ECJ by the XI. Senate of the Federal Fiscal Court with its decision of 23 September 2020 (XI R 22/18). The Federal Fiscal Court would answer in the negative as it recognises a link to the VAT exempt activities of the subsidiary. Further, it referred the question to the ECJ of whether an abusive structure is involved in such instances.
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