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The German Federal Fiscal Court has referred various questions to the ECJ on the VAT treatment of spa towns. Unlike in other cases, these towns specifically aim for the status of a taxable person in order to benefit from input VAT deduction. With its referral, the German Federal Fiscal Court also seeks to clarify the question as to whether a supply for consideration can also exist if only a certain group of persons is obliged to pay a remuneration, which is of significance for all taxable persons.
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The Federal Fiscal Court has expressed serious doubts about the lawfulness of the apportionment requirement for supplies of accommodation services. In justification, it refers to the ECJ submission of the V. Senate of the Federal Fiscal Court on the apportionment requirement for operating equipment. The decision on the suspension of execution thus brings fresh impetus to the discussion sparked by the ECJ judgment in the Stadion Amsterdam CV case as to whether the apportionment requirement for accommodation services is in conformity with EU law.
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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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