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The Federal Fiscal Court has ruled that installed operating equipment is not immovable property. This is the case irrespective of whether it is constantly affixed to the property or not. In the case at hand, the court was faced with making a decision concerning the reverse charge scheme in the construction sector. However, it also came to a number of general conclusions that may be relevant for the definition of services connected to immovable property. The German Administrative Circular will have to be amended accordingly. Companies performing and receiving supplies related to machines and equipment will have to review the VAT treatment and amend said treatment, if need be.
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The last recipient in a supply chain is not obliged to correct his input VAT deduction if he receives rebates from a manufacturer not resident in Germany. This is based on a judgment of the German Federal Fiscal Court. However, what is not yet decided is the reverse: Is it possible that the manufacturer resident in Germany corrects his output VAT if he grants rebates directly to the last recipient not resident in Germany and if VAT is due for the supply of goods to his customer in Germany?
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If a taxable person supplies services, within the meaning of sec. 3a para. 2 of the German VAT Act (Art. 44 of the VAT Directive), to a fixed establishment of another taxable person, the place of supply shall be where the fixed establishment is set up. Determining the existence of a fixed establishment is not always straight forward, especially in cases where the recipient uses external human and technical resources. In the recent legal case of Welmory, the ECJ was tasked with deciding this question. In the ECJ's opinion, even in a case like this, a fixed establishment may possibly exist.
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