Clarification: Incoterms not relevant for import VAT recovery

So far, Section 15.8 Paragraph 4 Clauses 1 and 2 regulates that the company is imported if the entrepreneur clears the imported item domestically for release for free circulation and afterwards within the scope of his entrepreneurial activity for the execution of Sales. This requirement is met by the entrepreneur who has the power to dispose of the object at the time of transfer to release for free circulation.

In practice, disputes have so far often arisen as to when an item “for the company” of the person who can claim the input tax deduction of the EUSt was introduced. It was often a matter of dispute whether the transfer of control over the implementation of an import was determined in accordance with the regulations for determining the place of performance for deliveries in accordance with Section 3 (6) UStG and, consequently, the right to deduct input tax in accordance with Section 15 (1) No. 2 UStG .

The authorities have clarified that in import cases, the granting of the power of disposal does not depend on civil law agreements under the Incoterms®, but that the time of delivery or the granting of the power of disposal of the import item must be determined exclusively according to the VAT location (§ 3 paras. 6 to 8 UStG). This also applies to chain transactions. The delivery clauses on which the delivery is based (e.g. Incoterms®) are irrelevant as civil law obligations. The principles of the BMF letter dated 16.07.2020 shall be applied in all open cases.


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