With a further ruling, the Federal Fiscal Court has clarified its case law on the transfer of a going concern. In the disputed case, only the inventory was sold. The business premises were not included. The Federal Fiscal Court was required to deal with the question of whether the isolated sale of the inventory constituted the transfer of a going concern, and was therefore outside the scope of VAT.
The Federal Fiscal Court confirms the ECJ’s decision in the legal case Stadium Amsterdam, according to which a partial application of a reduced VAT rate in the case of a single supply is found to be out of the question.
The Federal Ministry of Finance has extended the transitional phase for the VAT treatment of supplies via stocks until 31.12.2019. Hence, companies affected by this change have gained further time and presumably will only have to deal with this issue as 2020 approaches. Quick Fixes containing an EU-wide simplification rule for consignment stocks will then be implemented.
The 8th Senate of the German Federal Fiscal Court has joined the 9th Senate. It also voiced serious doubts that the interest rate of 6% p.a. in sec 238 para 1 of the German General Fiscal Code is constitutional. According to the 8th Senate, this has even applied since (November) 2012. The German Federal Constitutional Court plans to decide on this question before the end of the year. Until then, taxpayers should appeal against all interest assessments and apply for suspension of enforcement.
With its judgement of 17 October 2018 in the Ryanair case, the ECJ confirmed that holding companies do not play a special role in VAT law. The only signifi-cant factor is whether they are taxable persons within the scope of the VAT Directive.
The tax authorities should now rethink. The mere denial of the right to deduct input VAT with reference to the holding structure is not permitted. However, holding companies should also assess their VAT status if they want to avoid expensive surprises.
On 18 October 2018, the ECJ ruled in the Volkswagen Financial Services Case. It concerned the deduction of input VAT from company overheads (e.g. IT infrastructure, offices and office supplies) with exempt and taxable output supplies. The taxable person paid general costs using funds from exempt output supplies. However, this was found not to prevent the formation of a direct link with the taxable activity. The ECJ therefore, once again, confirms that the direct connection between input supplies and taxable output supplies must be viewed broadly.
CROATIA restricts the applicability of the local reverse charge mechanism +++ FRANCE abolishes Saisonnier-returns +++ INDIA requires online market place operators to withhold tax +++ ITALY reduces the scope of electronic invoicing +++ PORTUGAL introduces real-time reporting +++ SLOVENIA requires distance sellers to file Intrastat declarations +++ SWITZERLAND only charges broadcasting fees to established companies and applies VAT to distance sales +++UK introduced a software-interface solution to file VAT returns
On 02.10.2018, the EU Finance Ministers in the ECOFIN reached a decision on a number of measures in the field of VAT legislation. The ECOFIN agreed on the so-called “quick fixes” proposed by the EU Commission last year and these shall apply as of 01.01.2020 (cf. KMLZ Newsletter 32/2017). Furthermore, the Council allowed, until 30.06.2022, to apply temporarily the generalised reverse charge regime. In the future, member states will be permitted to apply a reduced VAT rate or a zero rate to electronic publications. The agreed measures to strengthen administrative cooperation between member states shall apply as of 01.01.2020.
The Federal Ministry of Finance limits the scope of application for supplies in maritime transport and aviation (letter of 05.09.2018). The transactions will be zero-rated, if the watercraft or aircraft can already be clearly and unambiguously identified at the time of the supply. Zero-rating can also be applied to supplies carried out at the earlier stage of the commercial chain where the supplier is able to prove the final purpose of the supply destined for a tax-advantaged watercraft or aircraft, by means of accounting and other documentary evidence. The tax benefits only apply to existing watercraft or aircraft.
VAT claims are often accompanied by both an assessment of interest, pursuant to sec 233a German General Fiscal Code, as well as late payment penalties, pursuant to sec 240 German General Fiscal Code. With regard to the interest rate, constitutional doubts are currently being raised (see KMLZ Newsletter 25/2018). The Fiscal Court Munich has now also expressed these same doubts regarding late payment penalties in circumstances where the taxpayer is over-indebted and insolvent for periods dating from 2015 (decision of 13.08.2018 – 14 V 736/18). In such cases, the late payment penalties are to be entirely waived. Accordingly, a managing director cannot be held liable.