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In the previous view of the German tax authorities, the VAT exemption for intra-Community supplies was to be dependent on the relevant EC Sales List being submitted or corrected in due time. Since the time this requirement was included in the German Administrative Circular in 2020, considerable doubt has existed as to whether this extremely strict view was actually acceptable under EU law. For some time now, there have been increasing loud whispers that the Federal Ministry of Finance would ultimately correct this. Now the time has finally come. In its letter of 20 May 2022, the Ministry clarifies that the VAT exemption cannot be denied solely on the basis of a failure to meet the deadline for the ECSL.
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In its decision of 21 April 2022, the Federal Fiscal Court abandoned its previous generous case law on supplies in the sports sector. The national VAT exemption rule was classified as basically in conformity with EU law. The ruling also makes it clear that Union law allows the German legislator to exercise a quite generous scope of discretion. However, as long as the legislator does not make use of its possibilities in favour of sports clubs, taxable persons in the sports sector can no longer invoke Union law.
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In its letter of 12 April 2022, the Federal Ministry of Finance commented, for the first time, on the ECJ judgment of 15 March 2007, the so-called direct claim (“Reemtsma claim”). Here, under certain conditions, recipients are granted a refund claim against the tax office, similar to input VAT deduction. However, the Federal Ministry of Finance has significantly restricted this claim. Union law is likely to oppose this narrow understanding of the Reemtsma claim.
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