After concluding a so-called gross price agreement, parties sometimes recognise that the supply is VAT-exempt. Normally these kinds of agreements do not allow for the recovery of VAT. On 20.02.2019, the Federal Court of Justice decided that such civil law claims may, sometimes, exist. A case’s chances of success, however, rest on its individual facts. Cases with a chance of success will be those where the views of the tax authorities, applicable at the time the contract was concluded, are subsequently regarded as being incorrect. The Federal Fiscal Court decided, in 2014, that the sale of patient customized cytostatic drugs by a hospital pharmacy, as part of its outpatient hospital treatments, is VAT-exempt.

The Federal Ministry of Finance does not raise complaints until 15.04.2019, provided that marketplace operators have at least received their online retailers’ applications submitted by 28.02.2019 for the issuance of registration certificates.

Most recently, the ECJ and the Federal Fiscal Court clarified that success-dependent remunerations paid for participating in competitions are not subject to VAT. In a recent Federal Fiscal Court decision of 25.07.2018 (XI B 103/17) this newer case-law is confirmed. The fact that, in addition to the activity associated with uncertainties, there is a further, definite activity, does not lead to the success payment being subject to VAT. When concluding contracts for success-dependent remuneration, it is important to check to which activities relevant payments relate and at what point in time any uncertainty about such payments exists. If there is uncertainty, at the point in time the supply of service is rendered, whether or not a payment will be made, the transaction is not subject to VAT.