The transfer of emission allowances in accordance with sec. 3 no. 2 of the Fuel Emissions Trading Act (BEHG) is subject to VAT. As from 01.01.2023, the recipient is liable for the VAT if he is a taxable person. The legislator has extended the scope of sec. 13b para. 2 no. 6 of the German VAT Act accordingly. In its letter dated 05.09.2023, the Federal Ministry of Finance published application rules for the treatment of these supplies.
The members of the EU Commission's VAT Committee have now almost unanimously agreed on Guidelines according to which transactions using a fuel card, in a commissionaire structure will, for VAT purposes, be deemed to be fictitious chain transactions. Despite not being legally binding, the Guidelines provide welcome guidance for contract design in dealing with the controversial ECJ rulings in the cases Auto Lease Holland and Vega International. For many companies, a need for action now arises.
In the past, the ECJ has ruled on the substantive requirements for the VAT exemption of transport services for imported goods. Thereafter, transport costs had to be taken into account in the taxable amount for the import. The judgement that has now been published deals with the question as to which formal, legal requirements the taxable person must fulfil in order to be granted the VAT exemption. Is he required to meet national VAT law requirements to provide specific proof in every case, or is it perhaps sufficient if the goods have been demonstrably released for free circulation (proof by the MRN)?