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A pleasing decision by the ECJ on the issue of fixed establishments: In the case Cabot Plastics Belgium SA (C-232/22), the ECJ confirms that a taxable person established in a third country does not constitute grounds for the finding of a fixed establishment at the place where its service provider (provider of tolling services) is established, in this particular case, Belgium. This applies even if the service provider acts exclusively for the customer under an exclusive contract. The judgment should be transferable to taxable persons established in an EU Member State and therefore brings legal certainty to tolling service cases.
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The Tour Operator Margin Scheme also applies to the resale of hotel contingents. What was already obvious following the ECJ judgment in the Alpenchalets Resorts case is now explicitly confirmed by the ECJ in its judgment of 29 June 2023. Switching to an intermediary business model is the only way out for businesses who purchase and sell hotel rooms to avoid the margin scheme.
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The Federal Ministry of Finance (BMF) has supplemented the German Administrative VAT Guidelines (UStAE) concerning the VAT treatment of the passing-on of costs, thereby regulating typical cases of application. The BMF also provides further valuable guidance on the VAT classification of the passing on of costs. It has adopted the legal principles of the German Federal Fiscal Court (BFH) which the court established last year. Accordingly, it is crucial to determine in which party’s interest the costs are incurred.
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