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Many German companies ship products for processing to other EU Member States. After processing and transformation, some finished products are returned to their EU Member State of origin and some are shipped to another EU Member State for further processing. In practice, there is great uncertainty - also due to differing national regulations. The ECJ has now decided that a (non taxable) temporary transfer of goods is only given if the goods will be returned to the country of departure after processing. However, this is only half of the story.
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Entrepreneurs are not obliged to pre-finance VAT over a period of years. The Federal Tax Court expressed its position regarding uncollectibility. Correction of VAT may potentially be taken into account whenever agreements regarding retentions are made on the basis of which entrepreneurs are not fully entitled to the payment of remuneration at the time of the supply is carried out (temporary uncollectibility).
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According to a decision of the Federal Court of Justice, the right to deduct VAT arises at the time the taxable supply is carried out. As a consequence, the right to deduct VAT does not cease to apply retroactively if the taxable person purchases goods “in good faith“ and only afterwards realizes that these transactions were part of a VAT fraud carousel. There is also no obligation to correct the submitted VAT returns in this case. The Federal Court of Justice’s decision increases legal certainty for taxable persons and consultants (decision of the Federal Court of Justice of 1 October 2013, 1 StR 312/13, see also decision of the Federal Court of Justice of 5 February 2013, 1 StR 422/13).
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