The Federal Fiscal Court (Bundesfinanzhof, BFH) ruled in its judgment of July 23, 2020, V R 32/191 that in the case of a fiscal unity, the controlling company receives the input service, so that for § 13b
(5) sentence 2 in conjunction with (2) no. 4 UStG depends on the external sales of the fiscal unity. In this context, it is the external sales attributable to the controlling company for VAT purposes that are relevant, and not the non-taxable intercompany sales of the controlled company within the tax group.
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With reference to the outcome of the discussions with the supreme fiscal authorities of the of 1 October 2010, BStBl I p. 846, which was most recently amended by the BMF letter dated September 27, 2021 – III C 3 – S 7134/21/10004 :001 (2021/1028891), BStBl I p. xxxx, has been amended as follows:
(1) Section 13b.3(7), third sentence, is amended to read as follows:
“3
When calculating the 10 % limit, only the tax bases of the turnover
which this part of the tax group has performed; non-taxable intercompany sales shall be disregarded.
intercompany sales shall be disregarded.”
(2) Section 13b.3a(3), second sentence, is amended to read as follows:
“2
Paragraph 2 and Section 3g.1 (2) and (3) shall apply only to the respective part of the enterprise; non-taxable intercompany sales shall be disregarded when determining the reseller status.
taxable intercompany sales shall be disregarded in determining reseller status.”
(3) Section 13b.7b(5), second sentence, is amended to read as follows:
“2
Paragraphs 2 and 3 are to be applied only to the respective part of the enterprise; non-taxable intercompany sales shall be disregarded when determining reseller status.”
The principles of this letter are to be applied in all open cases.
Source: bundesfinanzministerium.de
