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Umsatzsteuer Newsletter 08/2016
By judgment of 19 January 2016 (XI R 38/12), the XI Senate of the Federal Fiscal Court handed down its decision for the ECJ-proceedings Larentia + Minerva. The judgment deals with questions regarding VAT deduction for holding companies and VAT groups. The XI Senate follows the V Senate (judgment of 2 January 2015, V R 25/13) in recognizing partnerships as potential controlled companies. This is a pleasing development. It is also positive that “pure” holding companies are entitled to full VAT deduction. However, there is one small drawback as VAT exempt financial transactions may restrict VAT deduction. Clearing accounts and cash pools may develop into a VAT problem.
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Umsatzsteuer Newsletter 07/2016
The tax court Düsseldorf’s recent decision, in a case involving consignment stock, repeated the earlier findings of other tax courts. It confirmed that the circumstances of the specific single case are relevant, particularly, as to whether legally binding orders exist prior to the transfer of the goods to the stock. Only confirmation by the Federal Fiscal Court is, as yet, missing. Meanwhile, the Upper Tax Authority of Frankfurt am Main included these findings in its administrative circular regarding consignment stocks. The Authority also now allows the suspension of proceedings, in the case of appeals. The Upper Tax Authority also extended the list of countries accepting simplifications for consignment stocks, which are also acknowledged by the German tax authorities.
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The Federal Fiscal Court recently decided that the option for taxation for the supply of immovable property is only permissible in the notarized contract regarding this supply of immovable property. A subsequent option is invalid. This does not change, even in the instance of the existence of a notarized attested option. The Federal Fiscal Court’s decision contradicts the current opinion of the fiscal authorities. It remains to be seen whether the fiscal authorities will share the Federal Fiscal Court’s view. Until then, it should be examined carefully whether the option for taxation is necessary and if so it should be included in the notarial purchase contract.
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