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In a decision of 18 June 2015, the tax court Niedersachsen (Lower Saxony) expressed its disagreement with the tax authorities‘ opinion regarding consignment stocks (case no. 5 K 335/14). The case concerned supplies from the EU to a call-off stock in Germany. The tax court decided that the respective contractual agreements of the parties are essential for the VAT treatment. It is yet to be determined whether an unconditional purchase agreement had already been put in place prior to the goods being shipped to the warehouse. It is now evident that companies may not rely on the rules for consignment stocks as contained in the German VAT Circular. Both, suppliers and customers need to carefully check what is agreed in terms of their consignment stock contracts.
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Taxable persons who wish to carry out a zero-rated intra-Community supply of goods must provide proof thereof. Basically, the proof has to be formal in nature, specifically documentary and accounting evidence. In the Federal Fiscal Court’s view (judgment of 19 March 2015 – V R 14/14) evidence provided by a witness is accepted only in exceptional cases. Above all, this decision will have an impact on legal disputes.
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The Federal Fiscal Court expressed doubts that a management holding company could be entitled to fully deduct input VAT. This is based on the assumption that the supplies purchased are partly connected with the acquisition and holding of shares in the subsidiary companies which is not to be regarded as an economic activity. This is contradicted by the ECJ. The ECJ acknowledges that there is a right to fully deduct input VAT if the holding is involved in the subsidiary’s management and is thus rendering supplies subject to VAT. The ECJ has repeatedly confirmed the principle that costs, which occurred in connection with the acquisition of shares in subsidiary companies, are always deemed to be part of the general expenses. It is therefore not necessary to prove that the expenses are part of the cost elements of the output transactions subject to VAT. The ECJ does not, however, comment on the Federal Fiscal Court’s questions on the calculation method as regards input VAT deduction in the case of mixed holdings.
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