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Entrepreneurs are not obliged to pre-finance VAT over a period of years. The Federal Tax Court expressed its position regarding uncollectibility. Correction of VAT may potentially be taken into account whenever agreements regarding retentions are made on the basis of which entrepreneurs are not fully entitled to the payment of remuneration at the time of the supply is carried out (temporary uncollectibility).
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According to a decision of the Federal Court of Justice, the right to deduct VAT arises at the time the taxable supply is carried out. As a consequence, the right to deduct VAT does not cease to apply retroactively if the taxable person purchases goods “in good faith“ and only afterwards realizes that these transactions were part of a VAT fraud carousel. There is also no obligation to correct the submitted VAT returns in this case. The Federal Court of Justice’s decision increases legal certainty for taxable persons and consultants (decision of the Federal Court of Justice of 1 October 2013, 1 StR 312/13, see also decision of the Federal Court of Justice of 5 February 2013, 1 StR 422/13).
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The tax authorities follow the Federal Fiscal Court’s jurisdiction by means of a circular of the Federal Ministry of Finance. Significant VAT refunds incl. interest, for wrongly paid past VAT, are in store for property developers. Due to the clear and direct assignment of the input transactions, furthermore, the circular of the Federal Ministry of Finance has far-reaching consequences: Companies may now become liable for VAT when purchasing construction work although they have, to date, not fallen within the scope of sec. 13b of the German VAT Act.
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