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For photovoltaic systems a new VAT rate of 0% applies according to sec. 12 para. 3 of the German VAT Act as of 01.01.2023. However, the conditions attached to this, in the wording of the law, offer immense scope for interpretation. In this respect, the fear slowly spread that, in practice, supplier would subsequently be required to pay 19% VAT, which they would probably not be able to claim from their customers under civil law and in economic terms. For this reason, the Federal Ministry of Finance guidance on this topic was awaited with great interest.
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In two decisions, the German Federal Fiscal Court clarifies and narrows down the allocation of ancillary and auxiliary transactions to a taxable activity using the example of the acquisition of so-called luxury vehicles by a taxable person with a different main activity. The acquisitions only fall within the taxable sphere and entitle the taxpayer to an input VAT deduction if the transaction, viewed in isolation, is an economic activity or if the taxable main activity is directly, permanently and necessarily expanded. In order to secure the input VAT deduction, it must henceforth be ensured that an economic connection to the main business activity can be justified.
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On 01.01.2023, the German legislator implemented the DAC7 Directive. Somewhat covertly, it has laid the foundation for the introduction of a serious tax partnership between companies and the tax authorities. Those companies that have introduced an effective internal control system for tax purposes (Tax ICS) that is actually “lived” will, in the future, receive simplifications for tax audits. Everything is still being carefully formulated. However, the final go-ahead for the establishment of tax compliance management systems (Tax CMS) has been given.
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