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The ECJ has strengthened the right to deduct input VAT and thus the neutrality of VAT. Taxable persons who construct development facilities and later hand them over to the municipality, free of charge, are entitled to deduct input VAT. With its judgment of 16 September 2020 in the case Mitteldeutsche Hartstein-Industrie AG (C-528/19), the ECJ goes even further and states that taxation of a supply carried out free of charge can also be omitted.
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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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