In a tri-party contract, the question always arises as to who carries out which supply in return for consideration to whom. The main issue here is the requirement of a direct link. A recent German Federal Fiscal Court judgment, which deals with a clinic director’s waiver of his right to perform and invoice for medical treatment, also provides generally applicable statements in this regard. In addition, the German Federal Fiscal Court concretises its jurisprudence on the conditions under which an actus contrarius to a supply can be VAT exempt in the same way as the supply itself.

The Federal Fiscal Court has stated for the first time that in the case of a symbolic price no supply against remuneration is to be assumed and thus input VAT deduction is at risk. Even if the consideration is somewhat higher, the status as a taxable person can be lost if there is a so-called asymmetry between supplies and remuneration. In the case at hand, the plaintiff municipality was undone by the fact that the lease was ultimately settled by means of an additional grant.

If supplies of services are provided within the framework of a therapeutic continuum, they can be classified as VAT exempt medical treatment, even if different taxable persons are involved in the continuum. This was confirmed by the German Federal Fiscal Court in its decision on the VAT exemption of the isolated storage of frozen sperm and oocytes in connection with cryopreservation, thus expressly contradicting the view of the tax authorities. However, the German Federal Fiscal Court did not clearly clarify in which circumstances the participation of several taxable persons would be considered as being irrelevant with a view to VAT exemption.