VAT treatment of rental and leasing contracts: BMF considers proposals of the German Tax Consultants Association

Among other things, the association states that the qualification of a leasing agreement as a supply or other service for VAT purposes is no longer linked to income tax law. The decisive factor is whether there is a transfer of ownership clause and whether it is clear at the time the contract is concluded that ownership is to be transferred automatically to the lessee. In this context, the objectively assessable contractual conditions at the time of signing the contract are important.

The prerequisite is basically fulfilled in the case of a purchase option contained in the contract if the exercise of the option at the given time appears to be the only economically rational option for the lessee. The contract may not offer the lessee any other economic alternative. According to the BMF, this should apply if, at the time the option is exercised, the sum of the contractual instalments corresponds to the market value of the object including the financing costs and the lessee does not have to pay a “substantial sum” in addition when exercising the option.

The DStV criticised the lack of concretisation with regard to the requirement of the so-called “substantial sum”. The BMF has made up for this concretisation in the final letter and sees a “substantial sum” if the additional amount to be paid exceeds one percent of the market value of the object at the time the option is exercised.

Note: According to the DStV, the correct VAT assessment is essential, since if the item qualifies as a delivery, the full amount of VAT is incurred immediately. In contrast, if the leasing contract is treated as other service, the VAT does not arise until the individual instalments are paid.


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