A. The table of contents is supplemented and changed as follows

1. Section 6.1.6.3.5. is adapted:

6.1.6.3.5. Services to diplomatic and consular institutions as well as international organizations and their members in Austria as well as to other privileged persons under international law

2. Section 10.2.1.1. is adapted:

10.2.1.1. Items in Appendix 1 no. 1 – no. 3 4 5

3. Section 10.2.10. is newly inserted:

10.2.10. Repair services

4. Section 19.1.4. will be changed:

19.1.4. Transfer of tax liability for gas, electricity, heating and cooling deliveries via distribution networks ( § 19 Paragraph 1c UStG 1994 )

5. Section 21.10.1.6. is deleted:

21.10.1.6. Come into effect

6. Section 21.10.2.7. is deleted:

21.10.2.7. Come into effect

7. Section 22.4.3.3. is adapted:

22.4.3.3. Disposal and recovery of organic waste from sewage sludge

8. Before section 23.1. an addition is made:

Legal situation from January 1st, 2022

9. Section 23.1.1.3.1. is deleted:

23.1.1.3.1. Procurement services for entrepreneurs

10. Section 23.1.1.3.2. is deleted:

23.1.1.3.2. Provision of travel services for non-entrepreneurs

11. Section 23.1.1.5. is adapted:

23.1.1.5. Mixed travel services to non-entrepreneurs

12. Section 23.1.2.1. is deleted:

23.1.2.1. Service to entrepreneurs

13. Section 23.1.2.2. is deleted:

23.1.2.2. Performance to non-entrepreneurs

14. Section 23.5.3.1. is deleted:

23.5.3.1. Procurement services to entrepreneurs

15. Section 23.5.3.2. is deleted:

23.5.3.2. Procurement services to non-entrepreneurs

16. Section 23.7.3. is deleted:

23.7.3. estimate

17. Section 23.7.4.1. is adapted:

23.7.4.1. General tolerance rule

18. Section 28.1. is adapted:

28.1. Deliveries and intra-community acquisitions of protective masks ( § 28 Paragraph 50 and 54 UStG 1994 )

19. Section 28.3. is newly inserted:

28.3. COVID-19 in-vitro diagnostics and COVID-19 vaccines as well as other closely related services ( Section 28 Paragraph 53 Z 3 UStG 1994 )

20. Section 103.2. is adapted:

103.2. Consignment warehouse regulation (Art. 3 Para. 2 UStG 1994 repealed)

21. Section 128.1.4. is adapted:

128.1.4. Overview of the name and structure of the UID of the EU member states and Northern Ireland (as of January 1, 2021)

 

B. Changes in content

1. Taxable sales ( § 1 UStG 1994 )

1.1.1.6. Further cases for the exchange of services

The judgment of the ECJ of January 21, 2021, case C-501/19 , UCMR – ADA, is incorporated in margin no.8.

Rz 8 reads :

[…]

• The reprography and storage media remuneration according to § 42b UrhG by obligated parties to collecting societies is not subject to sales tax from 1.1.2018 (see ECJ January 18, 2017, case C-37/16 , SAWP ). The sale by the obligated party to the customer and the service of the collecting society to the rights holder are not affected by this.
• A collecting society that collects remuneration in its own name, but for the account of the owner of copyrights from musical works, thus generates taxable sales (see ECJ January 21, 2021, case C-501/19 , UCMR – ADA ).

1.1.3.2. Import of objects

Rz 102 is supplemented by a clarification regarding the origin of the import sales tax and the judgment of the ECJ of March 3, 2021, Rs C-7/20 , VS (against the main customs office in Münster) is incorporated into Rz 103 .

Rz 102 reads:

An import exists if

• a thing
• from the third country area
• reaches the inland, with the exception of the Jungholz and Mittelberg areas, and
• is cleared for free circulation.

According to customs law, the tax liability arises at the same time as the customs debt at the time of receipt of the customs declaration.

Rz 103 reads:

When goods are brought from a third country to an Austrian duty-free zone or a customs warehouse, there is initially no tax liability. Deliveries of items that are in duty-free zones or bonded warehouses are taxable domestic deliveries (see also ECJ 0 8.11.2012, Rs C-165/11 , Profitube spol. Sro .).

If the goods are then declared, the fact of import is fulfilled. The facts of import and delivery can coexist (VwGH 10. 0 7.2008, 2007/16/0025 ).

The fact of importation is also met if goods that have been placed under customs warehousing are stolen (ECJ of July 11, 2013, case C-273/12 , Harry Winston SARL ).

If there is a breach of an obligation under Union customs law when importing goods subject to customs duties into the Union, import sales tax is incurred in the Member State in which the infringement was established, provided that the goods in question entered the economic cycle of the Union in that Member State even if they physically entered the customs territory of the Union in another member state (ECJ 3.3.2021, case C-7/20 , VS ).

1.1.3.3. Authorities and applicable legislation

A reference to the import one-stop shop is included in the last paragraph in margin no. 105.

Rz 105 reads:

The EUSt is an import tax levied by the customs authorities.

Therefore the regulations on customs duties are to be used as far as possible (e.g. registration procedures, forms of temporary admission). The UStG 1994 regulates the tax base ( § 5 UStG 1994 ), the EUSt exemptions ( § 6 Abs. 4 to 6 UStG 1994 and Art. 6 Abs. 3 UStG 1994 ; for exemption from import sales tax when applying the special regulation in § 25b UStG 1994 for the import one-stop shop see in particular margin no. 1024 ), the tax rate ( § 10 UStG 1994 ) and input tax deduction ( § 12 UStG 1994 ) for imports autonomous. The special provisions of Section 26 and Section 26a of the UStG 1994 must also be observedthat regulate the collection of import sales tax in general .

Marginal numbers 106 to 140: currently free.

1.3.1. Community area

The remarks on Northern Ireland’s special position in margin no. 146 are supplemented by the note that deliveries to Austria can be subject to acquisition tax and deliveries to Northern Ireland can be intra-Community deliveries; In addition, a reference to margin no. 4343 and the Northern Irish UID is inserted.

Rz 146 reads:

[…]

The community area includes:

Belgium, Bulgaria, Denmark, Germany, Estonia, Finland, France (including Monaco), Greece, Ireland, Italy, Croatia, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Austria, Poland, Portugal (including Madeira and the Azores), Romania , Sweden, Slovakia, Slovenia, Spain (including the Balearic Islands), the Czech Republic, Hungary, Cyprus and, by December 31, 2020, the United Kingdom (including the Isle of Man). From January 1, 2021, Northern Ireland will be considered a community territory with regard to the provisions on goods (see also margin no. 148). Deliveries of goods from Northern Ireland to Austria will therefore also be treated after December 31, 2020 as if they had been delivered by a member state and could, for example, lead to intra-Community acquisitions; Likewise, the delivery of goods from Austria to Northern Ireland is to be treated like a delivery to the rest of the Community and can, for example, be an intra-Community delivery (for the Northern Irish VAT number provided for this purpose, see margin no. 4343) . For intra-Community mail order deliveries between Northern Ireland and another Member State, the special regulation according to Art. 25a UStG 1994 can be applied. For input tax reimbursement, see margin no.2836.

[…]

2. Entrepreneurs, companies ( § 2 UStG 1994 )

2.1.5. More cases

In margin no. 185, keyword “SME finance companies”, the reference to the KStR 2013 is corrected.

Rz 185 reads:

[…]

Meta companies (several people combine for the purpose of carrying out one or more transactions for a joint account, but each Metist appears in his own name): Are not entrepreneurs (BFH December 21, 1955, BStBl III 1956, 58).

SME finance companies within the meaning of § 6b KStG 1988 (cf. KStR 20 13 01 margin no. 2 91 ff. 39 to margin no. 281 ) are entrepreneurs.

[…]

2.2.2. Organschaft

2.2.2.1. general requirements

In margin no. 233, the judgment of the ECJ April 15, 2021, case C-868/19 , M-GmbH, is incorporated on the admissibility of certain partnerships as part of a tax group.

Rz 233 reads:

[…]

Any entrepreneur can be a controlling body (legal or non-legal person).

Organ (affiliated company) can be any legal person into which integration is possible. From 1 January 2017, a partnership in which, in addition to the parent company, only those persons are shareholders who are financially integrated into the parent company (capitalist partnerships) is also a controlled company, if the other requirements for the consolidated group are met (see BFH 2 December 2015, VR 25/13 with reference to ECJ July 16, 2015, verb. Rs C-108/14 and Rs C-109/14, Larentia + Minerva and Marenave Schiffahrt ).A financial integration of all other partners of the partnership into the controlling company is not necessary if it can be proven that the controlling company can enforce its will in the partnership through other binding measures (e.g. guarantee of majority resolutions based on the voting rights associated with the shares) (cf. . ECJ April 15, 2021, Case C-868/19 , M-GmbH , Rn 48). […]

2.2.2.3. The integration requirements in detail

2.2.2.3.2. Economic inclusion

In margin no. 237, the decision VwGH May 15, 2020, Ra 2018/15/0113 , on the economic integration of leasing companies in the banking sector is incorporated and the previously cited case law on economic integration relating to the scope of the UStG 1972 is deleted.

Rz 237 reads:

In order to meet the criterion of economic integration, the subsidiary must have a close economic connection with the parent company within the framework of the company as a whole. No economic “subordination” is required (VwGH 23.11.2016, Ro 2014/15/0031 with reference to ECJ 16.7.2015, verb. Rs C-108/14 and Rs C-109/14, Larentia + Minerva and Marenave Schiffahrt ) . The jurisprudence presupposes a sensible economic interdependence between the parent company and the body, the activities must be aligned and complement each other ( VwGH 15.5.2020, Ra 2018/15/0113 et al. MVa VwGH 13.12.2007 , 2006/14/0043 VwGH 7.5 1979, 2319/78 and VwGH 10.9.1975, 0640/73). Reciprocal delivery (power) relations between controlling company and the controlled company, such as between a marketing and production company provide a mutual interdependence, not only capitalist , is also economic. An economic inclusion of a leasing company (in a “classic” banking company) could, for example about exist if, in addition to the internal leasing of bank premises by the leasing company, the financing of third-party construction projects is largely carried out by the bank company (VwGH May 15, 2020, Ra 2018/15/0113 ). In the case of a pure investment holding (asset management holding), there is a lack of economic integration as well as entrepreneurship, which is why it cannot be a parent company.

2.2.2.4. Restriction of the effects of the tax group on the domestic market

In margin no.241, the judgment of the ECJ March 11, 2021, case C-812/19 , Danske Bank, is incorporated on the treatment of the services of a domestic parent company to its branch abroad, whereby it must be taken into account that in Austria, in contrast to the decision made by the ECJ In the Danish or Swedish case, the tax group does not represent an independent company, but the dependent parts of the company (controlled companies and branches) belong to the company of the controlling company.

Rz 241 reads:

The concept of the company within the meaning of Section 2 (1), second sentence of the UStG 1994 remains unaffected by the restriction of the tax group to the domestic market. Cross-border services between the controlling company (or the controlled company) and its business premises are (apart from intra-Community transfers) non-taxable internal sales if these belong to the controlling company’s company due to a lack of independent economic activity (see ECJ March 11, 2021, case C-812/19 , Danske Bank , marginal numbers 20 and 21) .

[…]

2.3.9. Construction and transfer of public road systems by outsourced or private legal entities

Rz 277 is adapted to the decision of the VwGH of 8 September 2021, Ro 2020/15/0011 , as well as to the judgment of the ECJ of 16 September 2020, Rs C-528/19 , Mitteldeutsche Hartstein-Industrie AG.

Rz 277 reads:

The (private) road builder can also deduct input tax from expenses resulting from the construction of public road systems (access roads, turning lanes, roundabouts, etc.) under the general requirements of Section 12 UStG 1994 . Neither the fact that the construction and maintenance of public roads falls within the remit of the local authorities, nor the fact that a constructed traffic area ultimately becomes the property of the road owner, already excludes an input tax deduction by a company commissioning the construction work (cf.VwGH July 25, 2013 , 2011/15/0055). This also applies if the construction (already) takes place on public property. It can actually be in the business interest of a property manager to develop his land better by investing in (adjacent) public land , whereby the prerequisite is that the construction and expansion work was essential for the operation of the entrepreneur and does not go beyond that what is necessary to enable the entrepreneur to carry out his entrepreneurial activity and the costs are included in the price of the initial sales made by this entrepreneur (see VwGH 8.9.2021, Ro 2020/15/0011 , mVa EuGH 16.9.2020, Rs C-528/19 , Mitteldeutsche Hartstein-Industrie AG ).

If other systems are transferred free of charge in the course of the construction of a road system and they subsequently do not serve the entrepreneurial needs of the entrepreneur, but rather exclusively the needs of the municipality, then – as long as the above-mentioned prerequisites for input tax deduction are met – self-consumption is present (cf. . for the free transfer of a sports field to a municipality VwGH 8.9.2021, Ro 2020/15/0011 ).

If the subsequent transfer to the public road maintenance company takes place as part of a paid (work) delivery, a tax-free property turnover according to § 6 Paragraph 1 Z 9 lit. a UStG 1994 can be assumed with regard to the delivery of the property (with the option of tax liability). Until December 31, 2016, the (factory) delivery of the public road system was taxable in any case (as factory delivery or as operating equipment). A delivery within the meaning of Section 3 Paragraph 1 UStG 1994to the public road maintainer is also to be accepted in the event that the construction costs are passed on to entrepreneurs interested in buying in the development area, if these payments are remuneration from third parties. Payments by entrepreneurs interested in buying represent a fee of a third party if the costs of the road construction measures are borne by the entrepreneurs interested in buying as agreed and passed on to them (pro rata) (cf. VwGH 25.10.2011, 2008/15/0299 ). The existence of such further charging does not rule out the fact that in addition to the remuneration from third parties, there is also a (proportionate) direct service remuneration (see VwGH April 30, 2015 , 2012/15/0163). The prospective buyers are not entitled to input tax deduction with regard to the assumption of costs or the payments made in this context, because it is not they but the public road maintenance company that is the recipient of the service (cf. VwGH 25.10.2011, 2008/15/0299 ). A unilateral act of sovereignty (e.g. changing the zoning for the purpose of establishing a commercial area or granting a commercial license) does not constitute consideration for the transfer of a public road system (see VwGH 9/8/2021, Ro 2020/15/0011 , Rn 33 and 34 mVa ECJ September 16, 2020, Case C-528/19 , Mitteldeutsche Hartstein-Industrie AG , Rn 49).

If a KöR builds a road system (e.g. a bridge including a connection to a commercial area) and an entrepreneur (e.g. the operator of an industrial park) undertakes to partially or fully assume the construction costs, the cost shares passed on by the KöR do not constitute a taxable fee, if possible to use these parts of the street publicly is granted by the state (e.g. by ordinance of the state). This means that an input tax deduction is eliminated from the cost shares charged on (also only proportionally) (VwGH 9/8/2021, Ro 2020/15/0011 , Rn 45).

If, on the other hand, the constructed public road systems are transferred free of charge to the public road maintenance company after completion, the withdrawal offense according to § 3 Paragraph 2 third sub-line UStG 1994 is triggered if the construction was carried out for business purposes and the input tax deduction from the construction costs is therefore allowed, VwGH 19.12. 2013, 2009/15/0137; VwGH July 25, 2013, 2011/15/0055). The assessment basis is determined in accordance with Section 4 (8) (a) of the UStG 1994 (based on the simultaneous or timely transfer, thus based on the total production costs for the building constructed).

3. Delivery ( § 3 UStG 1994 )

3.1. Concept of delivery

3.1.3. Uniformity of performance

3.1.3.3. ABC of uniform benefits and dependent fringe benefits

Based on the guideline of the 118th meeting of the VAT committee taxud.c.1 (2021) 6657618 – working document No. 1018 FINAL, clarifying statements on dependent ancillary services when charging electric vehicles are added in margin no. 348.

Rz 348 reads:

[…]

Connection to the cable television network: See margin no. 1284.

Charging an electric vehicle by a mobility provider: When charging an electric vehicle, carrying out the charging process is an additional service for the supply of electricity.

[…]

3.3a. Trading via platforms and other electronic interfaces

In margin no. 382 , the entry into force date is due to the postponement of the corresponding EU regulation by resolution (EU) 2020/1109 of the Council of July 20, 2020 amending Directives (EU) 2017/2455 and (EU) 2019/1995 with regard to the implementation period and the start of validity adjusted in response to the COVID-19 pandemic .

Rz 382 reads:

From 01/01/2021 01/07/2021 , platforms and other electronic interfaces ( hereinafter referred to as “platforms”) that support sales in accordance with Section 3 (3a) of the UStG 1994 will themselves become tax debtors for sales tax purposes. Ie. the platform is treated as if it had acquired the items from the supplier itself and delivered them on in its own name (see Section 3 (3a ) UStG 1994 ).

Sales within the meaning of Section 3 (3a) UStG 1994 are the following deliveries:

• Import mail order sales ( Section 3 (8a) UStG 1994 ; see margin no. 451), for which the (customs) individual value of the goods per shipment does not exceed 150 euros and
• Deliveries within the Community (including domestic deliveries) by an entrepreneur not established in the Community to a non-entrepreneur.

Example 1:

A Canadian dealer sells a pair of earrings via a platform that is established in Ireland and registered with the IOSS (cf. § 25b UStG 1994 ) for 120 euros (gross, including sales tax) to a private person in Austria. The goods arrive directly from Canada to Austria.

Solution:

From January 1 , 2021 , July 1 , 2021 , it will be assumed , in accordance with Section 3 (3a ) No. 1 UStG 1994 , that the Canadian entrepreneur delivers to the platform (only) for VAT purposes and that the platform in turn carries out a delivery to the end consumer. This establishes a chain transaction.

Since the movement of goods is assigned to the delivery by the platform in accordance with § 3 Paragraph 15 Z 2 UStG 1994 (moving delivery), the place of delivery for the delivery by the Canadian entrepreneur (dormant delivery) is in accordance with § 3 Par 15 Z 3 UStG 1994 in Canada (see also margin no. 474g). This turnover is therefore not taxable in Austria.

The delivery of the platform to the end consumer is deemed to be carried out as import mail order sales in accordance with Section 3 (8a) lit. b UStG 1994 in Austria. The platform has to declare and pay the Austrian sales tax (20 euros) via the IOSS in Ireland. The import is tax-free if the IOSS identification number of the platform is presented ( § 6 Paragraph 4 Z 9 UStG 1994 ).

Example 2:

The Chinese trader CN, without a branch in the EU, stores goods in a foreign warehouse in Germany. He later sells the goods to a non-entrepreneur in Austria via a platform operated by another entrepreneur.

Solution (from 1/1/2021 1/7/2021 ):

According to § 3 Para. 3a Z 2 UStG 1994 there is a delivery from CN to the platform and a delivery from the platform to the non-entrepreneur in Austria. This establishes a chain transaction in which the moving delivery is to be assigned to the delivery of the platform ( Section 3 Paragraph 15 Z 2 UStG 1994 ). CN has a real tax-exempt delivery in Germany within the meaning of Art. 136a VAT RL 2006/112 / EG (corresponds to Art. 6 Para. 4 UStG 1994 ). The platform has an intra-Community mail order business according to Art. 3 Para. 3 UStG 1994 to be taxed in Germany. The platform can comply with the EU-OSS ( Art. 369a to 369k VAT Directive 2006/112 / EC , corresponds to Art. 25a UStG 1994) take advantage of. Otherwise, the platform must be able to be registered for tax purposes in Austria.

3.8a. Import mail order sales (from July 1, 2021)

According to Art. 221 para. 4 UZK-IA as amended by DVO (EU) 2021/235 of February 8, 2021, from the entry into force of the e-commerce package – i.e. from July 1 , 2021 – goods that, according to Art. 23 para. 1 or Art. 25 para. 1 Customs Exemption Regulation (EC) No. 1186/2009 are exempt from import duties (i.e. shipments with a low value [up to 150 euros individual value per shipment] and goods in shipments from private individuals to private individuals up to a value of 45 euros) and for which the special regulation according to § 25b UStG 1994 (IOSS) does not apply, are only cleared for free circulation at a customs office located in the member state in which the dispatch or transport of the goods ends.

This means that imports with customs clearance of goods with an individual value per shipment of up to 150 euros in a Member State other than the Member State of destination are not possible under customs law if the IOSS is not used. The examples in margin no. 451 have been adapted to this new legal situation.

Rz 451 reads:

[…]

In both cases, the entrepreneur owes the sales tax in the country of destination. For the import sales tax exemption according to § 6 Abs. 4 Z 9 UStG 1994 in the importing country when using the IOSS see margin no. 1024 and margin no. 3434.

Example 1:

The Chinese entrepreneur CN sells goods with an individual value of 80 euros from China to private individuals in Austria. The goods are in Luxembourg presented to customs introduced and shipped to Austria . CN is not registered in the IOSS. CN can check in for consumption goods in Luxembourg and then to the individuals in Austria beförder n t . CN makes the registration for the release into free circulation. CN is not registered in the IOSS.

Solution:

According to Art. 221 (4) UZK-IA , goods with an individual value of up to 150 euros are cleared for free circulation in the Member State in which the movement of goods ends. On the basis of the customs regulations, the goods are transported from Luxembourg to Austria in a “dispatch procedure” and cleared for free circulation by the responsible customs office in Austria. Therefore, the special place of delivery regulation in Section 3 (8a) a UStG 1994 does not apply , but Section 3 (9) UStG 1994 (see margin no. 466). In addition, an import into Austria is carried out.

Variant:

As in example 1, only that the individual value of the shipment is 180 euros. CN has the goods cleared for free circulation in Luxembourg and then transported to private individuals in Austria.

Solution:

Since the individual value of the consignment exceeds 150 euros, Art. 221 para. 4 UZK-IA does not apply. According to Section 3 (8a) lit. a UStG 1994, the place of delivery is at the end of the transport . The delivery of the CN is therefore taxable in Austria. CN must register for sales tax in Austria . In addition, an import is carried out in Luxembourg , for which no exemption according to § 6 Abs. 4 Z 9 UStG 1994 is provided because CN is not registered in the IOSS . The input tax deduction in connection with imports is based on Luxembourg law.

For the solution when using the IOSS, see margin no.3716, example 1.

Example 2:

The Chinese entrepreneur CN sells goods with an individual value of 80 euros to private individuals in Austria. The goods are imported into Austria. CN is registered in the IOSS through a representative. CN has the goods cleared for free circulation in Austria and then transported to private individuals in Austria.

Solution:

According to Section 3 (8a) lit. b UStG 1994, the place of delivery is at the end of the transport. The delivery of the CN is taxable in Austria and must be declared via the IOSS.

Due to the use of the IOSS, the import is tax-free according to § 6 Abs. 4 Z 9 UStG 1994 . If the (customs) clearance for free circulation takes place in another member state, the import is carried out in this member state and the exemption from import sales tax is based on the law of this member state.

Marginal numbers 452 to 465: currently free .

3.13. Place of delivery of gas, electricity, heating or cooling ( § 3 Abs. 13 and 14 UStG 1994 )

3.13.1. Legal situation from 1.1.2011

In margin no. 474e, the statements on the place of delivery for the delivery of electricity in the guideline adopted by the 118th meeting of the VAT committee taxud.c.1 (2021) 6657618 – working document No. 1018 FINAL are supplemented.

Rz 474e reads:

When gas or electricity is supplied to another customer, the actual place of consumption of these items is taken into account (cf. § 3 Paragraph 14 UStG 1994 ). This is usually the place where the customer’s counter or, when charging an electric vehicle, the charging terminal is located. […]

The reference is updated in margin no. 474f.

Rz 474f reads:

[…]

For the tax liability of the service recipient ( Section 19 Paragraph 1c UStG 1994 ) see Section 19 margin no. 2604 d c .

3.14. Chain transactions from 1.1.2020

3.14.1. Requirements for chain transactions

In margin no. 474g , example 2 refers to the entry into force due to the postponement of the corresponding EU regulation by Council Decision (EU) 2020/1109 of July 20, 2020 amending Directives (EU) 2017/2455 and (EU) 2019/1995 adapted to the implementation period and the start of application in response to the COVID-19 pandemic .

Rz 474g reads:

[…]

For the sales of a chain transaction upstream and downstream of the moving delivery (dormant deliveries), the place of performance is standardized in Section 3, Paragraph 15, Item 3 and Item 4 of the UStG 1994 . Deliveries in the row before the moving delivery are carried out where the transport or dispatch begins. Deliveries in a row after the moving delivery are deemed to have been made where the transport or dispatch ends.

[…]

Example 2:

The manufacturer D1 in Munich sells goods to the wholesaler D2 in Berlin, which in turn sells to its customer Ö in Vienna. D2 picks up the goods from D1 and transports them to his customer Ö. D2 informs D1 of its German UID.

Solution:

The delivery by the intermediary D2 to Ö is according to § 3 Abs. 15 Z 1 lit. b UStG 1994 the moving delivery. If Ö is an entrepreneur, the place of delivery according to Section 3 (8) UStG 1994 is not in Germany, but Ö in Austria realizes an intra-Community acquisition in accordance with Art. 1 UStG 1994 . If Ö is a private person, the place of delivery for the delivery to Ö is in Austria due to the intra-Community mail order regulation ( Art. 3 Para. 3 UStG 1994 ) ( the delivery threshold must be observed until 31.12.2020 30.6.2021 ). The place of delivery for the delivery of the D1 to the intermediary D2 is according to § 3 Abs. 15 Z 3 UStG 1994 in Germany.

[…]

3.14.2. Chain transactions in third country matters

In example 3, in margin no. 474i , an editing error is corrected.

Rz 474i reads:

[…]

Example 3:

Ö in Austria sells goods to R1 in Russia. R1 sells the goods to R2, also in Russia. R1 instructs a freight forwarder to pick up the goods in Austria and transport them to Russia. R1 appears to Ö with an Austrian VAT ID.

Solution:

The delivery by R1 to R2 is a moving delivery according to § 3 Abs. 15 Z 1 lit. b UStG 1994 . It is tax-free in Austria as an export under the conditions of Section 6 Paragraph 1 Item 1 UStG 1994 in conjunction with Section 7 Paragraph 1 Item 21 UStG 1994 . The delivery from Ö to R1 is taxable and taxable as an upstream transaction according to § 3 Abs. 15 Z 3 UStG 1994 at the beginning of the transport (ie. In Austria).

3a. Other services ( § 3a UStG 1994 )

3a.1a. Self-consumption equivalent to other services

3a.1a.5. Place of self-consumption

In margin no. 487, the example on the location of self-consumption is adapted to the statements of the judgment of the ECJ of January 20, 2021, case C-288/19 , QM v Saarbrücken tax office, on the provision of vehicles to employees and on the term “rental of means of transport”.

487 reads:

The place of personal consumption according to § 3a Para. 1a Z 1 and Z 2 UStG 1994 is determined by the place of performance regulations that would have to be applied for other services if paid.

Example:

The German entrepreneur gives her employee concert tickets for a concert in Vienna as a bonus for special work.

There is a free other service within the meaning of Section 3a Paragraph 1a Z 2 UStG 1994 . According to Section 3a (11) lit. a UStG 1994, the place of self-consumption is at the place of work in Austria.

The German entrepreneur provides his employees with a vehicle belonging to the company division on a case-by-case basis for private trips both in Germany and abroad. The vehicle is actually made available in Germany. The provision of the vehicle represents a short-term rental of a means of transport. The place of personal consumption for all private journeys is in Germany in accordance with Section 3a Para. 12 Z 1 UStG 1994.

3a.2. Exchange-like sales

489 is supplemented by an example for the provision of vehicles to employees for the sake of clarity.

489 reads:

If the entrepreneur grants a benefit in kind with an independent economic content and if he receives part of his work performance from the employee in return, an exchange-like turnover is present.

Example:

The Austrian entrepreneur provides his employee residing in Austria with a vehicle belonging to the company division for private trips as part of her remuneration. The provision of the vehicle in exchange for part of the work represents a turnover similar to an exchange. The place of performance for long-term rental of the vehicle by the entrepreneur is at the recipient location in Austria in accordance with Section 3a Para. 12 Z 2 UStG 1994 .

[…]

3a.4. Procurement service

The judgment of the ECJ of November 12, 2020, case C-734/19 , ITH Comercial Timişoara SRL, (statements on procurement services) is incorporated in margin no. 638g .

Rz 638g reads:

[…]

The act must be done for the account of a third party. This means that the economic risk associated with the service concerned is not borne by the person concerned. Therefore, for example, acting on the account of a third party is excluded if the party concerned spends more than he receives from his client. In addition to the reimbursement of costs, the procurer will regularly charge his own procurement fee (VwGH 27. 0 8.1990, 89/15/0079 ; cf., for example, the freight forwarder’s commission in accordance with Section 409 of the UGB ).

In order for a procurement service to be available, there must be an order on the one hand, on the basis of which the procurer acts for the account of the client, and on the other hand there must be similarity between the procured service and the procurement service (see ECJ November 12 , 2020, case C-734/19 , ITH Comercial Timişoara SRL ).

If the service (to be assessed uniformly) is not limited to procurement, but also includes other services with its own economic weight, it is no longer possible to speak of procurement service as a whole, but the procurement activity is only an dependent part of a uniform other service. This is about to accept when the other, additional services make the procurement performance from the perspective of the participants only make economic sense (VwGH 29 0 7.2010, 2008/15/0272 ).

[…]

3a.9. Property location

3a.9.1. Services in connection with a property

The judgment of the ECJ of July 2, 2020, Case C-215/19 , Veronsaajien oikeudenvalvontayksikkö, (hosting services in a data center are not services in connection with a property) is incorporated in margin no. 640c.

Rz 640c reads:

Not in a sufficiently direct connection with a property are among others. the following services, provided they are independent services:

• […]
• the storage of objects on a property if the customer is not given a specific part of the property for exclusive use ( Art. 31a Para. 3 lit. b Regulation (EU) No. 282/2011 as amended by Regulation (EU) No. 1042 / 2013 );
• Hosting services in a data center, which consist of the provision of equipment cabinets to accommodate servers and, as an ancillary service, include the delivery of goods and services for optimal use of the server (such as power supply), provided that the service recipients do not have the right to exclusive use of a certain part of the building have (see ECJ of July 2nd, 2020, case C-215/19 , Veronsaajien oikeudenvalvontayksikkö );
• arranging accommodation in a hotel or accommodation in industries with a similar function, such as in holiday camps or on a camping site ( Art. 31a Para. 3 lit. d Regulation (EU) No. 282/2011 as amended by Regulation (EU) No. 1042) / 2013 ), see also margin no.639z.

Marginal number 640d: currently free .

3a.11. Place of work

In margin nos. 640n, 640q, 641f and 642o, statements on the place of performance for online events are added based on the guideline taxud.c.1 (2021) 6378389 – working document No. 1016 FINAL of the 118th meeting of the VAT Committee.

3a.11.1. General

Rz 640n reads:

The scheme de s § 3a para. 11 VATA 1994 is only valid for other services, which in a positive action (this includes the activities of photo models) are made. In the case of these services, the activity itself generally determines the place of performance (see, however, Section 3a (11) lit. a to c UStG 1994 , as well as margin nos. 640p to 641d). The place where the success occurs or the other service has an impact is irrelevant (BFH 0 4. 0 4.1974, BStBl II 1974, 532). The decisive factor is where the decisive conditions for success are set (BFH 11/26/1953, BStBl III 1954, 63). It is not decisive where the entrepreneur, e.g. artist, is predominantly active in the context of his overall activity, but rather the individual turnover is to be considered. It is not necessary for the entrepreneur to take part in an event. In the case of an activity that extends domestically and abroad, e.g. training activity of a ski trainer, it must be clarified where this is carried out exclusively or to a significant extent. For this, qualitative criteria are primarily decisive. If qualitative weighting cannot be carried out, the time required must be taken into account (VwGH 30. 0 3.2006, 2002/15/0075). If the service is provided in different countries without the time expenditure in one country being absolutely predominant, the relatively greater time expenditure must be taken into account (VwGH December 16 , 2009 , 2007/15/0208 ).

In the case of events that consist of interactive presentations transmitted in real time via the Internet, the place of performance is at the place of work, that is the place where the service recipient is based or has his domicile or habitual residence (to determine the place of work based on the residence of the service recipient see ECJ May 12, 2005, C-452/03 , RAL Ltd , Rn 33 ; ECJ May 8, 2019, C-568/17 , Geelen , Rn 49 ). For the determination of the place of performance Art. 23 , 24 , 24a , 24b , 24d , 24f and apply25 of Regulation (EU) 282/2011 as amended (see for these presumption regulations in accordance with margin no. 641n). For the place of performance for events that do not take place in real time or without interactive presentations, see margin no. 642n.

3a.11.2. Cultural, artistic, scientific achievements, etc.

Rz 640q reads:

Also teaching (teaching – in the broadest sense – is the systematic, regular teaching that is separated from the overall life. In contrast to teaching, teaching is usually not limited to the presentation of the teaching content, but also involves the learner taking care of their appropriation and the success control.) by distance learning or by a teacher via the Internet or an electronic network (web seminars) represents a teaching activity within the meaning of § 3a Paragraph 11 lit. a UStG 1994. From the point of view of the VAT does not make a difference whether the knowledge required to achieve the teaching objective is transmitted through written documents (brochures, etc.) or via the Internet. At web seminarsthe place of performance is determined by the recipient of the service (see margin nos. 640n and 642o). Until 12.31.2021 this is B b ei web seminars where the work is done according to § 3a para. 11 letter a VAT Act 1994 aimed applies as of activity of the place where the teacher is established where this is not proven its services from another location.

Example:

The Austrian entrepreneur A offers an online language course for non-entrepreneurs and entrepreneurs within the EU.

Solution from 01/01/2022:

The place of performance for sales to non-entrepreneurs is the place of residence or habitual residence of the non- entrepreneur, both in the case of a teaching activity pursuant to Section 3a Paragraph 11 lit. a UStG 1994 and other electronically provided services pursuant to Section 3a Paragraph 13 UStG 1994 . The presumption rule in Art. 24b of Regulation (EU) 282/2011 is used to determine the place of performanceas amended to apply. If, for example, the non-entrepreneur uses a German IP address and makes the payment via a German bank account, there is a presumption that the non-entrepreneur lives or has his habitual residence in Germany and that the place of performance is therefore in Germany. The taxation of this turnover is therefore based on German law. In order to avoid VAT registration in other member states, A can register for the EU-OSS in Austria. In this case, A can declare the sales tax for the services provided to non-entrepreneurs in other member states via the EU-OSS (see margin no. 4297).

The place of performance for the sales to the entrepreneurs is according to § 3a Abs. 6 UStG 1994 at the respective recipient place. Section 3a (11a) UStG 1994 does not apply due to the lack of physical presence of the recipient (see margin no . 641f) .

3a.11.6. Entrance authorization to events

Rz 641f reads:

Other services relating to admission to events ( Section 3a Paragraph 11a UStG 1994 ) are services whose essential feature is the payment of the right to admission to an event. The concept of admission to an event requires the physical presence of the recipient of the service. No therefore admission ticket for an event lies in the cases of online participation of the beneficiary before (see margin 640q).

[…]

3a.14.14.3. Examples of services provided electronically

Rz 642o reads:

Other services provided electronically are in particular:

[…]

8.Providing programs and events in the fields of politics, culture, art, sports, science and entertainment. This includes, for example, web broadcasting, which is distributed exclusively via the Internet or similar electronic networks and is not broadcast in the conventional way at the same time. However, there is no electronically rendered service for events that are broadcast in real time via the Internet and that consist of an interactive presentation and are therefore not rendered essentially automatically (for the place of performance, see margin no. 640n).

[…]

3a.16.3. Relocation of the location of other services for telecommunications, radio and television services

The judgment of the ECJ of April 15, 2021, case C-593/19 , SK Telecom Co. Ltd, is incorporated into margin number 643 .

Rz 643 reads:

If the location of the telecommunications service, radio or television service is outside the community area and if the service is not subject to any tax burden comparable to the domestic sales tax burden , it will be subject to the regulation of the Federal Ministry of Finance, Federal Law Gazette II No. 383/2003 id g F Federal Law Gazette II No. 221/2009 carried out domestically, if it is used or evaluated there , if this avoids non-taxation in the Union, without it being important which tax treatment these services are subject to under the national tax law of the third country (see ECJ April 15, 2021, Rs C-593/19 , SK Telecom Co. Ltd ).This applies regardless of whether the service is provided to an entrepreneur within the meaning of Section 3a Paragraph 5 Items 1 and 2 UStG 1994 or to a non- entrepreneur within the meaning of Section 3a Paragraph 5 Item 3 UStG 1994 . Until December 31, 2021, it was an additional requirement that the service outside the community area was not subject to a tax burden comparable to the domestic sales tax burden.

Roaming services that are provided by a mobile network operator based in a third country to its customers who are also based in that third country or who have their place of residence or habitual abode there and which enable these customers to use the national mobile network of the Member State in which they are located temporarily stopping and using are to be regarded as services whose “actual use or evaluation” takes place in the territory of this member state (see ECJ 15.4.2021, case C-593/19 , SK Telecom Co. Ltd ).

The Austrian network providers have the option of invoking EU law, which is more favorable to them, with regard to the telecommunications services they provide to third-country companies. However, an appeal is only possible in cases in which telecommunications services are provided to recipients in a third country and these services in the third country are subject to a tax burden comparable to domestic sales tax. The latter requirement must be proven by the Austrian network provider, whereby this can be done, for example, by describing the legal provisions in the third country and submitting the corresponding tax assessments.

Example:

An Austrian mobile network operator concludes a contract with a mobile network operator based in a third country, according to which the two contracting parties give the respective entitled customers of the other contracting party the opportunity to receive telecommunication services on the network operated by them (roaming contract). The customer of the third country company is on the phone in Austria. In the third country, the telecommunications service is not subject to any tax burden comparable to the domestic sales tax burden.

The place of performance of the Austrian entrepreneur is initially assessed in accordance with Section 3a (6) UStG 1994 and, according to this provision, is in a third country, since the service is provided to an entrepreneur. However, since this service is used in Austria, the place of the service is relocated to Austria due to the ordinance of the Federal Ministry of Finance, Federal Law Gazette II No. 383/2003 .

The place of performance of the third country entrepreneur is based on § 3a Paragraph 6 or Paragraph 13 UStG 1994 in the version from 1.1.2015 (until 31.12.2014: § 3a Paragraph 7 UStG 1994 or § 3a Paragraph 13 lit. a UStG 1994 or Section 3a (15) UStG 1994) . If he provides his service to an entrepreneur in the community area, the place of the service is in the community area. If the entrepreneur is based in Austria, the place of performance is in Austria. In this case, the tax liability can be transferred.

If the service is provided to an entrepreneur in a third country or a non-entrepreneur in a third country, the place of performance is in accordance with Section 3a Paragraph 6 or Paragraph 13 of the UStG 1994 as amended from 1.1.2015 (until 31.12.2014: Section 3a Paragraph 13 lit. a or para. 7 UStG 1994) in each third country. Since this service is used in Austria, however, the place of the service is relocated to Austria due to the ordinance of the Federal Ministry of Finance, Federal Law Gazette II No. 383/2003 .

4. Assessment basis ( § 4 UStG 1994 )

4.1. Remuneration

In margin number 644, the reference to Section 6 (6) NoVAG 1991 is deleted, as this legal position is obsolete.

644 reads:

[…]

The NoVA increases from 1 March 2014 (only more) in the cases of Section 6 Paragraph 6 NoVAG 1991 in the version of Federal Law Gazette I No. 13/2014 by the 20 percent NoVA surcharge (Section 6 Paragraph 6 NoVAG 1991).

[…]

4.3. Passing items

4.3.2. Individual cases

Rz 657 is adapted to the changes made by the Renewable Expansion Law ( EAG ), Federal Law Gazette I No. 150/2021.

Rz 657 reads:

[…]

Promotion of green electricity systems (see in particular Green Electricity Act , Federal Law Gazette I No. 149/2002 as amended ):

[…]

• The metering point flat rate according to Section 22 of the Green Electricity Act is to be paid as a subsidy by all consumers connected to the public grid. In relation to consumers, the metering point flat rate is subject to sales tax as an additional fee as part of the uniform “network service”. Equally, amounts according to § 73 and § 75 EAG are remuneration for other services in connection with the operation of the green electricity system. The collection of the metering point flat rate is not part of an exchange of services from OeMAG to the network operator and is not subject to sales tax.

[…]

6. Tax exemptions ( § 6 UStG 1994 )

6.1.6. Other real tax exemptions

6.1.6.3. Services to diplomatic and consular institutions, to international organizations in the territory of another member state and to NATO armed forces

Before margin no.744, the heading is supplemented by the phrase “and to other privileged persons under international law” and reads:

6.1.6.3.5. Services to diplomatic and consular institutions as well as international organizations and their members in Austria as well as to other privileged persons under international law

Rz 744 is adapted to the current version of the International Tax Compensation Act – IStVG , amended by Federal Law Gazette I No. 3/2021 and Federal Law Gazette I No. 54/2021.

Rz 744 reads:

These services cannot be left tax-free according to Section 6 (1) (6) (c) UStG 1994 , but are taxable and subject to tax in Austria. However, for the delivery of motor vehicles and the rental of real estate, see margin no. 747a. The beneficiary recipients, however, have the option of paying the sales tax in accordance with Federal Law Gazette No. I No. 71/2003 as amended (Federal Law on International Tax Refunds, Refunding Taxes to Foreign Representative Authorities and their members with diplomatic rank – International Tax Refunding Act – IStVG ) to apply.

If a tax refund is required due to international law obligations or the granting of privileges and exemptions by federal law or ordinance, the IStVG applies accordingly, insofar as the procedure for this is not regulated. International institutions within the meaning of the Official Seat Act, Federal Law Gazette I No. 54/2021, are treated as equivalent to foreign representative authorities.

The competent authority is the tax office for large companies.

Foreign representation authorities within the meaning of this law are diplomatic and professional consular representations as well as permanent representations at international organizations that have their official seat in Austria.

6.1.6.4. Services to foreign representation authorities and their diplomatic and professional consular members in Austria

In margin no. 747a, the references to the legal situation until December 31, 2015 have been removed.

Rz 747a reads:

[…]

6.1.6.4.4. Rental of land

The term “land” corresponds to that of Section 6 (1) 16 UStG 1994 , the term “land for residential purposes” that of Section 10 (2) 3 lit. a UStG 1994 (until 31.12.2015: Section 10 (2) Z 4 lit. a UStG 1994) . The tax exemption according to § 6 Abs. 1 Z 6 lit.d UStG 1994 takes precedence over the tax exemption according to § 6 Abs. 1 Z 16 UStG 1994 .

For the definition of property from 1 January 2017, see margin no. 639v.

6.1.6.4.4.1. The rental of land for non-residential purposes

The rental of land (without residential purposes) also includes the rental of rooms and spaces for parking vehicles of all kinds (regardless of whether they are rented with the building or whether it is, for example, renting a garage space in an underground car park).

6.1.6.4.4.2. The rental of land for residential use

The rental of land for residential use also includes the supply of heat. The garage rented out with the apartment is not included in the rental for residential purposes (see margin no. 1191 with regard to § 10 para. 2 no. 4 UStG 1994 ). As part of Section 6 (1) (6) (d) of the UStG 1994 , the fee for the garage spaces, if they are rented out with the apartment, can also be left tax-free (in order to avoid administrative costs, as the sales tax would otherwise have to be claimed in the reimbursement procedure) will. However, this does not apply to garage spaces that are rented by third parties.

[…]

6.1.7. Social security and welfare agency benefits

6.1.7.1. Beneficiary entrepreneurs

In margin number 748, a reference to ECJ October 8, 2020, case C-657/19 , Finanzamt D, on the requirements for the existence of a recognized institution with a social character is incorporated.

Rz 748 reads:

[….]

Other legal entities that meet the requirements of Art. 132 Paragraph 1 Letter g of the VAT Directive 2006/112 / EC can apply the exemption if they operate a recognized institution with a social character (see ECJ October 8, 2020, case C- 657/19 , Tax Office D ) and the application of the tax exemption does not lead to any distortion of competition vis-à-vis taxable economic operators (see VwGH February 27, 2019 , Ro 2018/15/0022 ; VwGH September 23, 2005 , 2005/15/0070 ).

6.1.7.2. Scope of exemption

In Rz 749 it is made clear that with regard to the beneficiary scope of benefits in old people’s and nursing homes operated by social welfare institutions, the same principles apply as for institutions operated by other corporations or legal entities benefiting from §§ 34 ff BAO within the meaning of § 6 Paragraph 1 Z 18 or 25 UStG 1994 (see margin no.932).

Rz 749 reads:

[…]

The sales of the old people’s and nursing homes operated by social welfare institutions are also illegitimately tax-exempt according to § 6 Paragraph 1 Z 7 UStG 1994 . With regard to the scope of the exemption, margin no.932 applies accordingly .

6.1.8. Money and capital movements

6.1.8.6.2. Current account transactions including payment and transfer transactions

In margin no. 764b, a reference to BFH December 10, 2020, VR 4/19 , on administrative, organizational and technical services in the credit card business is added in the second bullet point .

Rz 764b reads:

In particular, sales from rendering are not covered by the exemption

• of services in connection with the operation of a cash dispenser, which consist of setting up and maintaining these machines, filling them with cash and equipping them with hardware and software for reading the money card data, forwarding authorization requests for cash withdrawals to the bank, which will accept the cash card used has issued to make the desired cash payment and to generate a data record about the payments (see ECJ October 3 , 2019 , case C-42/18 , Cardpoint GmbH ),
• a bundle of services in connection with credit card payments and withdrawals via ATMs, which are mainly used to create accounting files made available by the respective contractual partners (banks and retailers) (see VwGH February 20, 2019, Ro 2018/13/0017 , and BFH December 10, 2020 , VR 4/19 , on administrative, organizational and technical services in the credit card business ),

[…]

6.1.8.10. Management of special funds

In margin no.772a, the judgments ECJ 2.7.2020, Case C-231/19 , Blackrock Investment Management (UK) Ltd, on uniform administrative services relating to both special assets and non-beneficiary funds, as well as ECJ 17.6.2021, verb . Rs C-58/20 and C-59/20, K and DBKAG, incorporated into outsourced administration services. Statements to the contrary in the 2008 sales tax protocol are no longer upheld. Furthermore, margin no. 772a has been restructured for better understanding.

Rz 772a reads:

The tax exemption for the management of special assets is intended to promote access of small investors to the securities market (see ECJ June 17, 2021, Rs C-58/20 and C-59/20, K and DBKAG ). The aim of the exemption of sales in connection with the management of special funds by capital investment companies is to ensure tax neutrality with regard to the choice between direct financial investments in securities and those that are made through the involvement of organizations for collective investments (ECJ 04/05/2006, Rs C-169/04 , Abbey National plc / Inscape Investment Fund ) .

Term special fund

Special funds within the meaning of § 6 para. 1 No. 8 lit. i VATA 1994 are funds that serve the sole purpose of publicly procured monies for their joint account in securities to create that particular fund, the collective investment in transferable securities within the meaning of Directive 2009/65 / EG , to coordinate the legal and administrative provisions relating to certain undertakings for collective investment in transferable securities (UCITS). This includes UCITS within the meaning of Section 2 of the 2011 Investment Fund Act (InvFG 2011), Federal Law Gazette I No. 77/2011, real estate funds within the meaning of Section 1 of the Real Estate Investment Fund Act , Federal Law Gazette I No. 80/2003, Alternative Investment Funds (AIF) as defined by Alternative Investment Fund Manager- Law ( AIFMG), Federal Law Gazette I No. 135/2013, which meet the requirements of Section 3 (2 ) No. 31 InvFG 2011 , as well as special funds defined as such by other member states. The beneficiary special fund also includes any assets subject to foreign law that are invested in accordance with the principles of risk diversification regardless of their legal form in accordance with the law, the articles of association or actual practice, provided that such funds have the same characteristics as undertakings for collective investments within the meaning of the UCITS -Directive , 2009/65 / EG, and thus make the same sales or are at least similar to these that they are in competition with them (see ECJ 7.3.2013, Rs C-424/11 , Wheels et al. , Rn 24 mVa, ECJ 4.5.2006, caseC-169/04 , Abbey National plc / Inscape Investment Fund , margin nos 53 to 56, as well as ECJ June 28, 2007, case C-363/05 , JP Morgan , margin nos 48 to 51). Funds that are managed by companies that are subject to special state supervision, which includes authorization (licensing) and control of the management company by the competent supervisory authority, in particular for the protection of investors, are considered special assets (see ECJ December 9, 2015, case no C-595/13 , Fiscale Eenheid X NV cs ).

An investment fund, in which the capital assets of a pension system are brought together, does not fall under the term “special fund” if the members do not bear the risks associated with the management of this fund and the contributions that the employer pays to the pension system are a means for it represent to meet his legal obligations towards his employees (see ECJ 7.3.2013, case C-424/11 , Wheels etc. ). If, on the other hand, such a special fund is financed by the entitled employees or in their name and for their account by the employer, the payments are invested according to the principle of risk diversification and if the investment risk is borne by the employees, the exemption can be granted according to§ 6 Abs. 1 Z 8 lit. i UStG 1994 apply. In this context, it is irrelevant whether the contributions are based on collective agreements between the organizations of the social partners or whether the economic modalities of the return of the savings are of various kinds (see ECJ 13.3.2014, case C-464/12 , ATP PensionService A / S) .

Outsourced sales

According to the ECJ 4.5.2006, Rs C-169/04, Abbey National plc / Inscape Investment Fund , the services of the administrative and accounting management of the investment funds by a third party are subject to the tax exemption if they form a largely independent whole and are specific and essential for the management of these funds.

In addition to the tasks of investment management, the administrative tasks of the undertakings for collective investment themselves are specific, as described in Annex II of Directive 2009/65 / EC on the coordination of legal and administrative provisions relating to certain undertakings for collective investment in transferable securities (UCITS) under the heading “Administrative activities” are listed (e.g. accounting services, valuation of fund assets, setting the issue prices of fund units, monitoring compliance with legal provisions, answering customer inquiries). Not specific for the management of real estate funds and therefore not from the tax exemption according to § 6 Abs. 1 Z 8 lit.Fiscale Eenheid X NV cs , marginal number 78). This applies to property management, for example.

The aim of exempting sales in connection with the management of special funds by capital investment companies is to ensure tax neutrality with regard to the choice between direct financial investments in securities and those made through the involvement of collective investment schemes. Therefore, in principle, the specific and essential administrative activities are those that are only associated with an indirect, but not also with a direct investment (e.g. in fund management the accounting requirement, keeping the register of shareholders and the issue and return of shares).

According to the ECJ 4/5/2006, Case C-169/04 , Abbey National plc / Inscape Investment Fund , when managing special funds , neither the person providing the service nor the person receiving the service is relevant . It is therefore also the services of third parties of an outside administrator be free, regardless of whether if the transfer of tasks not in accordance with § 28 para. 1 of the Investment Funds Act 2011 , BGBl. I no. 77/2011, or in accordance with § 3 para. 3 Real Estate Investment Fund Act , Federal Law Gazette I No. 80/2003, and the conditions listed there are not met (cf. also ECJ 7.3.2013, RsC-275/11 , GfBK , on advisory services for securities investments that are provided by third parties to an investment company). However, outside administrator services are exempt only if they

• form a largely independent whole (“independence”) and
• specific and essential for the management of these special funds

(ECJ May 4, 2006, Rs C-169/04 , Abbey National plc / Inscape Investment Fund ; ECJ July 2, 2020, Rs C-231/19 , BlackRock Investment Management (UK) Ltd ; ECJ June 17, 2021, verb C-58/20 and C-59/20, K and DBKAG ) .

The criterion of “independence” does not require that the activity must be completely outsourced (ECJ 17.6.2021, verb. Rs C-58/20 and C-59/20, K and DBKAG ).

In the light of the objective of the exemption provision, the administrative activities that are only associated with an indirect, but not also with a direct investment (e.g. in fund management, the accounting requirement, keeping the register of shareholders and the issue and return of shares) are specific and essential ). In addition to the tasks of asset management, the administrative tasks of the collective investment schemes themselves, as set out in Annex II of Directive 2009/65 / EC, are specific for the coordination of legal and administrative regulations concerning certain undertakings for collective investments in securities (UCITS) are listed under the heading “Administrative activities” (e.g. accounting services, valuation of fund assets, setting of the issue prices of fund units, monitoring of legal compliance, answering customer inquiries ).

The following activities are specific to the management of investment funds, provided they are closely related to the activities of the management company and are performed exclusively for the purposes of managing investment funds:

• the granting of a right to use software that is used exclusively to carry out calculations essential for risk management and performance measurement (see ECJ 17.6.2021, case C-58/20 and C-59/20, K and DBKAG )
• as well as – at least from 1.1.2022 – the assumption of tax work that ensures the taxation of the fund income of the shareholders in accordance with national law (see ECJ 17.6.2021, verb. Rs C-58/20 and C-59/20, K and DBKAG )

However, the following activities are not specific to the management of special funds:

• the actual management of the real estate held in a real estate investment fund for the purpose of maintaining and increasing the invested assets (see ECJ December 9, 2015, verb. Rs C-595/13 , Fiscale Eenheid X NV cs , Rn 78). This applies to property management, for example.
• Management services that are provided to a fund management company by the software platform of a third party if this has been designed for the purpose of managing various types of investments and is used equally for the management of special assets and the management of other funds. This applies even if the software platform predominantly manages special funds (see ECJ 2.7.2020, Rs C-231/19 , Blackrock Investment Management (UK) Ltd ).

Others

To determine the place of performance for catalog services, see margin no.641q.

Revenues from portfolio management services of an investment services company based in Austria for investment funds within the meaning of Section 6 (1) (8) lit. i UStG 1994 based in a third country are not taxable in Austria and do not entitle you to input tax deduction in accordance with Section 12 (3) (3) UStG 1994 .

6.1.9. Sales that are also subject to other taxes

6.1.9.3.1. Insurance benefits

In margin no. 851, the judgment ECJ 25.3.2021, case C-907/19 , Q-GmbH, on the tax liability of the granting of licenses for an insurance product is incorporated.

Rz 851 reads:

According § 6. 1 Z 9 lit. c VATA 1994 , sales are exempt where for an insurance fee in accordance with § 3 insurance Tax Act 1953 is paid. Insurance fee is according to § 3 Insurance Tax Act 1953any service that is to be provided for the establishment and implementation of the insurance relationship with the insurer (e.g. premiums, contributions, advance contributions, advance and additional payments, allocations, surcharges for the short year, costs for issuing the insurance policy, entry fees and other ancillary costs). Even if a payment is not an insurance fee, it is only subject to sales tax if it is a fee for a specific service by the insurer. This does not apply to dunning costs. The reminder costs do not represent the remuneration for an independent exchange of services and are therefore exempt like the main service (insurance cover) (VwGH 0 2. 0 3.1992, 90/15/0143). Reminder fees and the reimbursement of the costs of judicial dunning proceedings are always non-taxable damages.

Tax-free insurance sales exist if the insurer undertakes to provide the insured person with the service agreed upon conclusion of the contract against prior payment of a premium when the insured event occurs. By its very nature, it establishes a contractual relationship between the provider of the insurance service and the person whose risks are covered by the insurance, ie. the insured person, in advance (see ECJ March 25, 2021, case C-907/19 , Q-GmbH , Rn 32, mVa EuGH March 17, 2016, case C-40/15 , Aspiro, Marginal numbers 22 and 23). The granting of a license to an insurer to use an insurance product cannot therefore be classified as insurance sales, since the licensor is only contractually bound to the insurer who uses the product in question in accordance with the license agreement and, as a rule, does not provide the coverage for the Insured risks based on this product (ECJ 25.3.2021, case C-907/19 , Q-GmbH , Rn 33).

[…]

6.1.11. Schools, private tutors

6.1.11.1. Private schools and similar institutions

6.1.11.1.2. Comparability with public schools

Rz 876 will be adapted to the amendment to the UStBLV with effect from January 1, 2021 by Regulation BGBl. II No. 614/2020 . In addition, in the sixth bullet point, the no longer active link to the list of institutions in the Austrian post-secondary sector, now referred to as the “Complete list of post-secondary educational institutions in Austria”, is replaced by the current access path on the BMBWF homepage. With regard to the courses for further education, an adjustment will be made due to the repeal of Section 3 Paragraph 2 Z 11 FHG by Federal Law Gazette I No. 177/2021 .

Rz 876 reads:

Legal situation from 1.1.2019

A school or school-like institution (cf. margin no. 875) must pursue a comparable objective so that its privileged services (cf. margin no. 875a) are tax-free. A comparable objective is included in accordance with Section 1 of the ordinance of the Federal Minister of Finance on the existence of a comparable objective for educational services (VAT Educational Services Ordinance, Federal Law Gazette II No. 214/2018, UStBLV)

• Private schools within the meaning of the Private School Act, Federal Law Gazette No. 244/1962 , or the Agriculture and Forestry Private School Act, Federal Law Gazette No. 318/1975 ,
• Private Universities and private universities after the private Higher Education Act (PrivHG), FLG. I no. 77/2020, and private universities in the sense that under the conditions of the private University Act (PUG), FLG. I no. 74/2011, or as well as private universities, the conditions under the of § 2 University Accreditation Act , Federal Law Gazette I No. 168/1999, have been accredited,
• Universities of applied sciences and according to the University of Applied Sciences Act (FHG), Federal Law Gazette No. 340/1993 (until December 31, 2020 also institutions for the implementation of technical college courses within the meaning of the University of Applied Sciences Studies Act es ( FHStG ), Federal Law Gazette No. 340/1993),
• private pedagogical universities within the meaning of Section 4 of the 2005 Higher Education Act , Federal Law Gazette I No. 30/2006 , as well as public pedagogical universities within the framework of their own legal personality in accordance with Section 3 of the 2005 Higher Education Act , Federal Law Gazette I No. 30/2006,
• other vocational training institutions under private law that are recognized as such on the basis of a special legal authorization,
• post-secondary educational institutions that carry out job-related post-graduate training and further education as part of a cooperation with a university or technical college (e.g. doctoral courses , or university courses or courses for further education within the meaning of Section 3, Paragraph 2, Item 11 of the FHStG ). Post-secondary educational institutions are those represented by the Federal Ministry of Education, Science and Research in the list of institutions of the Austrian post-secondary area complete list of post-secondary educational institutions in Austria are listed (from rufbar call on the homepage of BMBWF under“Topics / University & University / University system / Post-secondary higher education institutions” https://bmbwf.gv.at/studium/studieren-in-oesterreich/oesterr-hochschulwesen/postsekundaere-bildungseinrichtungen-in-oesterreich/ ),

[…]

6.1.14. Non-profit sports associations

6.1.14.1. Term not for profit

In margin no.883, the judgment of the ECJ December 10, 2020, case C-488/18 , Golfclub Schloss Igling e. V., on the requirement of tied assets in the absence of profit-making intent and – related to this – a reference to § 39 BAO and VereinR 2001 margin no .

Rz 883 reads:

Regarding the term “charitable status”, reference is made to the VereinR 2001 margin nos. 13 to 20 and margin nos. 72 . The lack of profit-making presupposes that the respective sports association does not generate any profit for its members during its entire existence and also during its dissolution . The association’s assets must therefore continuously serve the realization of the purpose pursued by it and may not be transferred to its members after its dissolution, insofar as it exceeds the paid-in capital shares of its members and the fair value of the contributions in kind made by them (ECJ December 10, 2020, Rs C-488/18 ,Golf Club Schloss Igling e. V. , marginal nos 50 and 51; See also VereinsR 2001 margin no. 113 ff on § 39 BAO for the requirement of exclusive funding ) . For the tax treatment of a professional company at non-profit sports clubs in team sport, see VereinsR 2001 margin no. 878 ff .

6.1.16. Rental and leasing of land

6.1.16.4. No property rental

In margin no. 892, statements on the sales tax treatment of usage contracts in the area of ​​”shared coworking space” (temporary provision of fully equipped workplaces in open-plan offices with significant additional services) are included, as well as the judgment of the ECJ 2.7.2020, case C-215/19 , Veronsaajien oikeudenvalvontayksikkö, incorporated into hosting services in a data center.

Rz 892 reads:

If the rental of the property takes a back seat to the main service, there are no rental contracts and the tax exemption of Section 6 (1) 16 UStG 1994 does not apply. This applies, for example, to the following contracts:

Dismantling contracts, if the remuneration is based on the scope of the dismantled material (VwGH 3.11.1986, 85/15/0098 ) and fitness center (VwGH 12.11.1990, 90/15/0043 and VwGH 26.11.1990, 90/15/0062 ) . ;

Provision of office workplaces: Are office workplaces (coworking spaces) available in an office building for a limited period of time (on a daily, weekly or monthly basis) without entitlement to a specific workplace and, in this context, also considerable additional services (such as the provision of office furniture and office utensils) , a network printer, internet access, a meeting room with equipment and the cleaning of the workplace), there is a sui generis contract (see margin no. 891a);

Hosting services in a data center, in the context of which the customer is provided with equipment cabinets for the purpose of accommodating servers and – as ancillary services – other services with which the use of these servers is to be guaranteed under optimal conditions, if on the one hand the service provider his customers does not passively leave an area or location and thereby assures you of the right to take possession of this area or location like an owner, and on the other hand, the equipment cabinets are not an integral part of the building in which they are located and not there permanently (ECJ 2.7.2020, Rs C-215/19 , Veronsaajien oikeudenvalvontayksikkö ). For the place of performance, see margin no. 640c.

6.1.19. doctors

6.1.19.2. Activity as a doctor

6.1.19.2.3. No sales from medical work

In margin no.948, statements by the VAT Committee (guidelines from the 114th meeting, DOCUMENT B – taxud.c.1 (2020) 5395036 – 994, point 5.1 [document taxud.c.1 (2019) 7741025 – working document no. 981]) on the VAT treatment of “combined lifestyle interventions” and – in connection with this – a reference to ECJ March 4, 2021, Rs C-581/19 , Frenetikexito – Unipessoal Lda, on the services of a fitness studio in the field of nutrition coaching.

Rz 948 reads:

The following activities, for example, are not curative treatments within the meaning of Section 6 (1) No. 19 UStG 1994 :

• the writing activity, even if it involves reports in a medical journal;

[…]

• Services that consist in providing information about illnesses or therapies, but due to their general nature are not suitable to contribute to the protection, maintenance or restoration of human health (ECJ March 5, 2020, Rs C-48/19 , X- GmbH );
• health promoting services, such as combined lifestyle interventions, which are not provided directly with the aim of or in connection with prophylactic or therapeutic treatment, but rather aim to improve the recipient’s lifestyle through guidance or coaching in relation to diet, exercise and other aspects;
• Nutritional coaching as part of training programs in a fitness studio (see also ECJ March 4, 2021, case C-581/19 , Frenetikexito – Unipessoal Lda , marginal numbers 30 and 31);
• the transfer of use of large and small medical devices against payment;
• the rental of premises by doctors (e.g. to other doctors).

[…]

6.1.27. Small business owner

6.1.27.2. Determination of the EUR 35,000 turnover limit (until December 31, 2019: EUR 30,000)

A reference to the judgment of the ECJ of July 9, 2020, Case C-716/18 , CT, is inserted in margin number 995 .

Rz 995 reads:

All sales in accordance with Section 1 Paragraph 1 Z 1 and 2 UStG 1994 – except auxiliary transactions (see ECJ July 9, 2020, Case C-716/18 , CT ) including business sales – are to be examined in the examination of whether the 35,000 euro limit ( until December 31, 2019: 30,000 euros) must be included. This also includes sales that are subject to the average agricultural rate taxation in accordance with Section 22 UStG 1994 . In the case of an estimate, these sales can be set at 150% of the value of the agricultural and forestry operation ( Section 125 (1) lit. b BAO ).

[…]

6.1.28. Mergers of banks, insurance companies and pension funds

6.1.28.2. Mergers

In margin no. 1012, the judgment of the ECJ November 18, 2020, case C-77/19 , Kaplan International Colleges UK Ltd, on the applicability of the tax exemption to services of a merger to a tax group, as well as a response from the BMF to this question, are incorporated.

Rz 1012 reads:

[…]

• The exemption does not apply to mergers in which an entrepreneur domiciled abroad is involved, as this usually does not generate predominantly taxable preferential sales (see margin no. 1011).
• The application of the tax exemption may not benefit someone who is not a member of the independent association (see ECJ November 18, 2020, case C-77/19 , Kaplan International Colleges UK Ltd , recitals 48 and 49, on Art. 132 para. 1 lit. . f VAT RL 2006/112 / EG ).
• The exemption in Section 6 (1) No. 28 UStG 1994 applies to other services “from mergers of entrepreneurs”. If an entrepreneur is a member of the association, this applies for VAT purposes for his entire company. According to Section 2 (2) penultimate sentence of the UStG 1994 , controlled companies are to be treated as part of a company. If the controlling company is a member of the association, this applies to its entire company and thus also to the subsidiaries.

6.4. Import exemptions

6.4.2. In the UStG 1994 separately regulated exemptions from import sales tax

In margin no. 1024 there is an adaptation of the explanations regarding the elimination of the exemption for small consignments. Since the technical and organizational prerequisites for the exemption were not met before July 1, 2021, the relevant statements are to be deleted due to the lack of scope.

Rz 1024 reads:

[…]

[…] From July 1, 2021, the exemption for imports below 22 euros will no longer apply . If the technical and organizational prerequisites for setting, collecting and collecting the EUSt on items with a total value not exceeding 22 euros are already in place before July 1, 2021, the exemption according to § 6 Para. 4 Z 9 UStG 1994 already applies from the Time when the prerequisites are met. This point in time is to be announced by the Federal Minister of Finance in the Federal Law Gazette (see Section 28 Paragraph 47 No. 3 UStG 1994).

[…]

6.4.3. Tax exemptions based on customs exemptions

The period of validity of the pandemic-related tax exemption for the import of certain aid goods was extended to December 31, 2021 by Commission Decision (EU) 2021/660 from April 19, 2021 (C (2021) 2693). A corresponding adjustment is made in margin no. 1025.

Rz 1025 reads:

[…]

• From January 30, 2020 to April 30, 2021 December 31, 2021 in connection with the COVID-19 crisis (Commission Decision (EU) 2020/491 of April 3, 2020, C (2020) 2146, Decision (EU) 2020/1101 of the Commission of July 23, 2020, C (2020) 4936, and Commission Decision (EU) 2020/1573 of October 28, 2020, C (2020) 7511 ) and Commission Decision (EU) 2021/660 of April 19, 2021 , C (2021) 2693) : the import of relief supplies, e.g. protective masks (protective textile masks, paper protective masks, FFP2 and FFP3 protective masks), protective clothing, protective gloves, face shields, disinfectants, for the benefit of disaster victims under the following conditions:
  • […]

7. Export delivery ( § 7 UStG 1994 )

Rz 1051 is expanded to include information on the retention obligation for the export certificate in the case of tourist exports for those cases in which the exit of the goods was granted by the license holder in accordance with the Customs Tourist Export IT Ordinance 2019 .

Rz 1051 reads:

[…]

If the export under the ECS (Export Control System) furnished, the located at the customs office electronic record the original of the export certificate represents. This case covers the retention requirements of the supplying entrepreneur for proof of export to the expression of the Customs Office reported data set (pdf-File ) or electronic storage is also possible. This applies mutatis mutandis to the export certificate for tourist exports, in which the exit of the goods has been electronically confirmed in accordance with the Customs Tourist Export IT Ordinance 2019 , Federal Law Gazette II No. 344/2018.

For information on third country territory in terms of sales tax law, see margin nos. 146 to 148.

[…]

7.1.3. Touristenexport

In margin number 1054, the statements on personal luggage in the judgment of the ECJ of December 17, 2020, case C-656/19 , BAKATI PLUS Kereskedelmi és Szolgáltató Kft., Are incorporated.

Rz 1054 reads:

Such a tourist export exists if

• the object is not acquired for business purposes and
• the customer carries out the item in personal luggage.

“Personal luggage” means items, generally of small size or in small quantities, that an individual carries with him on a trip, that he or she needs during the trip and that is for his or her private use or that of his / her family. They can also be purchased during the trip (see ECJ December 17, 2020, case C-656/19 , Bakati plus Kereskedelmi és Szolgáltató Kft. ).

Personal luggage includes items that a traveler brings with them when crossing the border (e.g. hand luggage or luggage carried in a vehicle). Objects that are not transported in the same means of transport as the passenger (e.g. luggage checked in by rail or air) are also deemed to be “carried in luggage”. A car is not considered personal luggage.

7.2. Foreign buyer

7.2.2. Touristenexport

Margin no. 1062 will be adapted to the current legal situation.

Rz 1062 reads:

In the case of tourist exports (margin nos. 1054 to 105 5 8 ), the customer must not have a domicile or habitual abode in the community area. To determine this, the place entered in the passport or other border crossing document is to be used.

If there is no entry in the passport about a place of residence or habitual residence, a distinction must be made as follows:

• In the case of customers whose passports were issued by an authority in a Member State, it can be assumed that they are domiciled or habitually resident in the Community.
• In all other cases, a residence in the community area is assumed if a residence permit for the Republic of Austria ( Section 2 Paragraph 4 Z 14 Aliens Police Act 2005 , Federal Law Gazette I No. 100/2005 as amended) or in the rest of the community area is entered in the passport. The requirements for a tax-free export delivery are not met in these cases.
• The same applies if a residence permit in accordance with § 8 Settlement and Residence Act – NAG, Federal Law Gazette I No. 100/2005 id g F Federal Law Gazette I No. 135/2009 , in particular in the form of the residence title “Permanent residence – EU ” within the meaning of § 8 Para 1 no. 7 3 NAG and “Residence permit for a temporary limited stay in the federal territory for a specific purpose” within the meaning of § 8 para. 1 no. 12 5 NAG is given.

The foregoing shall not apply to those cases where the border crossing document only one visa ( “Visa” or “Visa”) within the meaning of the Schengen Borders Code (Regulation (E U G ) no. 2016/399 562/2006 of the European Parliament and of the Council of 9 March 15 , 20 16 06 on a community code for people crossing borders, OJ No. L 77 105 of March 23, 2016 April 13, 2006 p. 1), unless this visa also includes a residence permit.

[…]

7.6.1. Proof of export in tourist export

In margin no.1098, the reference to the Customs Tourist Export IT Ordinance is adjusted to the currently valid Customs Tourist Export IT Ordinance 2019 , Federal Law Gazette II No. 344/2018.

Rz 1098 reads:

[…]

If the license holder adheres to the procedure in accordance with the Customs Tourist Export IT Ordinance 2019 , Federal Law Gazette II No. 344/2018 53/2016 , the electronic confirmation of the exit of the goods by the license holder constitutes a customs official confirmation of exit within the meaning of Section 7 Paragraph 6 Z 1 UStG 1994 .

10. Tax rates ( § 10 UStG 1994 )

In the heading of section 10.2.1.1. as well as in margin nos. 1166 and 1172, the references to Annex 1 UStG 1994 are expanded to include item 35 supplemented by Federal Law Gazette I No. 3/2021 or a clarification is made. With regard to the statements on hygiene articles, margin no. 1173d is added.

10.2.1.1. Items in Appendix 1 no. 1 – no. 3 4 5

Rz 1166 reads:

The items, the delivery of which (including the delivery of works), personal consumption in accordance with Section 3 Paragraph 2 and Section 3a Paragraph 1a UStG 1994 , import and intra-Community acquisition are subject to the reduced tax rate of 10%, are listed in Appendix 1 Z 1 to Z 3 4 5 UStG 1994 listed exhaustively.

Rz 1172 reads:

Other services in connection with items in Annex 1 Z 1 to Z 3 4 5 UStG 1994 (e.g. in connection with books or other printed matter; with the exception of the rental of printed matter, see margin no. 1177) are not subject to the reduced tax rate (e.g. the production of photocopies ; Sale of digital or electronic books see ECJ 5.3.2015, case C-502/13, Commission / Luxembourg ; ECJ 5.3.2015, case C-479/13, Commission / France ). […]

Rz 1173d reads:

Monthly feminine hygiene goods such as sanitary pads (pads), tampons made of all kinds of materials, menstrual cups, menstrual sponges and period pants are favored. Panty liners are also favored.

10.2.3. Rental of land; Apartment owners associations; Accommodation and campsite sales

10.2.3.1. General

Margin no. 1184 is adapted to the currently applicable legal situation, according to which the reduced tax rate applied in Austria for renting for residential purposes is based on Art. 117 (2) VAT Directive 2006/112 / EC .

Rz 1184 reads:

The renting and leasing as well as the transfer of use of land for residential purposes and the services of condominium associations in connection with apartments are subject to the reduced tax rate due to the exception of Art. 117 Para. 2 VAT Directive 2006/112 / EC of an agreement in the membership contract . This exception, which was originally limited to four years, was initially extended by Council Directive 2000/17 / EC of March 30, 2000. The reduced tax rate does not apply in an interpretation in accordance with Union law to a loss-making housing rental that is judged to be a hobby. This is compulsorily unauthorized tax-exempt without the possibility of, according to § 6 Abs. 2 UStG 1994to opt for tax liability (VwGH February 16, 2006, 2004/14/0082 ; VwGH April 30, 2015, Ra 2014/15/0015 ; see LRL 2012 margin nos . 168 and 184 ).

10.2.3.10. Student, apprentice, children’s and school homes

In margin in 1229 of 01.09.2019 were performed with change of will to § 5 para. 1 dormitory Act , BGBl. No. 291/1986, by BG, with the dormitory law is changed, BGBl. I no. 15/2019 , taken into account.

Rz 1229 reads:

[…]

Legal situation before January 1st, 2016 and from November 1st, 2018:

Revenues based on usage contracts in accordance with Section 5 (1) of the Student Residence Act , Federal Law Gazette No. 291/1986 as amended in Federal Law Gazette I No. 24/1999 , comparable revenues from apprentice homes as well as children’s and school student home rates that include accommodation fall before 1.1 .2016 under § 10 para. 2 no. 4 lit.b UStG 1994 as amended by Federal Law Gazette I No. 112/2012 and from November 1, 2018 under § 10 para. 2 no. 3 lit. c UStG 1994 as amended by BGBl. I No. 12 / 2018. The reduced tax rate of 10% therefore remains applicable.

After margin no. 1343, the headings “10.2.10. Repair services” and margin no. 1344 with statements on repair services are added.

10.2.10. Repair services

Rz 1344 reads:

Since January 1st, 2021, repair services (including repairs and changes) relating to bicycles, shoes, leather goods, clothing or household linen have been subject to the reduced tax rate of 10%. However, deliveries including factory deliveries are not favored.

Electric bicycles are also covered by the preferential treatment, but not other motorcycles (for a definition of motorcycles, see margin no.1937).

In any case, leather goods are understood to mean goods within the meaning of Chapter 42 of the Combined Nomenclature.

Household linen is a collective term that includes, for example, bed linen, upholstery, tea towels, towels, tablecloths, placemats and curtains. Upholstered furniture, on the other hand, does not count as household linen according to the general understanding of the term.

The term clothing is independent of the material it is made of. The cleaning of clothing does not fall under the reduced tax rate of 10%, as cleaning does not constitute a repair service within the meaning of Section 10 Paragraph 2 Z 10 UStG 1994 .

A subsidized repair of bicycles, shoes, leather goods, clothing or household linen is accepted in any case if the portion of the remuneration that is attributable to the material used in the repair is less than 50% of the total remuneration paid for the repair.

Example:

A tailor for alterations charges 40 euros for work (shortening and renewing a zipper) on a dress. The portion of the remuneration that is allotted to the material used is 5 euros.

All work on the dress is subject to the reduced tax rate of 10%.

Example:

A bicycle repair shop charges 70 euros for work (service including replacement of brake pads) on a bicycle. The portion of the remuneration that is allotted to the material used is 10 euros.

All work on the bike is subject to the reduced tax rate of 10%.

Marginal numbers 134 5 4 to 1350: currently free

12. Input tax deduction ( § 12 UStG 1994 )

12.1. General

In margin no.1802, the judgment of the ECJ of November 12 , 2020, C-42/19 , Sonaecom SGPS SA , on the input tax deduction of a mixed holding company for advance payments of unrealized investments, as well as VwGH May 19, 2020, Ro 2019/13/0030 , are incorporated.

Rz 1802 reads:

The input tax deduction is generally permitted for all transactions carried out for the company and for the import of any type of goods for the company. In general, no distinction can be made between the purposes for which the item purchased for the company or the other service used for the company is used (for exceptions see margin nos. 1914 to 20 1 0 5 ). The input tax deduction remains in place even if an item purchased or imported for the company is sold below the purchase price or is neither directly nor indirectly used for the company’s own sales (e.g. if the goods go down) ., or if the entrepreneur uses other services to carry out his taxable sales, but ultimately does not carry out these sales (eg “sunk costs”). The input tax deduction is to be refused, however, if the entrepreneur makes use of advance payments to carry out his taxable sales, but ultimately generates sales that do not entitle to input tax deduction (see ECJ November 12 , 2020, case C-42/19 , Sonaecom SGPS SA ) .

It is also consistent with the established case law of the Administrative Court that the input tax deduction is granted if the material requirements are met, even if the taxpayer does not meet certain formal requirements. In such a case, the right to input tax deduction may not be denied if the tax authorities have all the data to check whether the material requirements applicable to this right have been met. The situation is different if the violation of the formal requirements prevents reliable evidence that the material requirements have been met. The right to deduct input tax must also be refused if it is established on the basis of the objective situation that this right is being exercised fraudulently or improperly (VwGH May 19, 2020,Ro 2019/13/0030).

In margin no.1802a, the knowledge of the VwGH 15.5.2020, Ra 2018/15/0113 , on abusive practice in connection with real estate leasing is incorporated.

Rz 1802a reads:

The input tax deduction is to be refused if it is to be asserted with the help of an improper arrangement, e.g. no input tax deduction from bogus invoices (VwGH 27.6.2017, Ra 2017/13/0026 ) or in the case of improper real estate leasing (VwGH 15.5.2020, Ra 2018 / 15/0113 ) . An improper design such is given when the transactions concerned, notwithstanding formal application of the provisions of the law have a tax benefit to the result, the grant is contrary to the purpose of the VATA 1994 and objective of a series evidence is seen that a with the transactions concerned essentially Tax advantage is intended (see ECJ February 21, 2008, case C-425/06, Part Service , ECJ November 22 , 2017 , Rs C-251/16 , Cussens et al. ). The Authority has specifically targeted by the selected construction tax benefit (in the field of value added tax) advantage determine what a provisional within the meaning of § 200 para. 1 BAO can justify (Administrative Court 31.3.2011, 2008/15/0115 ).

[…]

12.1.1. Group of people entitled to deduct input tax

References are corrected in margin nos. 1803 and 1809.

Rz 1803 reads:

All entrepreneurs within the meaning of Section 2 UStG 1994 (see margin nos. 181 to margin nos. 3 26 40 ) are entitled to deduct input tax according to § 12 UStG 1994 within the scope of their business activities.

Rz 1809 reads:

Businesses domiciled abroad may in principle claim the input tax deduction even if they do not or have not performed any deliveries or other services in Germany. They are also only entitled to input tax deduction insofar as the input tax amounts are attributable to their entrepreneurial activity. This also applies to input taxes that are related to non-taxable sales, insofar as these sales, had they been exported in Germany, would be taxable or genuinely tax-exempt. In order to be considered an entrepreneur, however, the entrepreneurial criteria under Austrian law (see margin nos. 181 to margin nos. 2 3 0 9 ) must also be met for a foreign entrepreneur .

12.1.2. Input tax deduction based on the invoice

References are corrected in margin no. 1821.

Rz 1821 reads:

A separate tax ID requires that the tax amount applicable to the payment for the delivery or other service is listed separately on the invoice (Section 11 Paragraph 1 Z 6 3 lit. f UStG 1994). If this feature is missing, the input tax deduction is also not permitted if the invoice issuer authorizes the invoice recipient by adding an addition to the invoice to calculate the tax amount from the specified gross price. There are simplifications for small amount invoices, tickets and travel expenses (see margin nos. 1625 f to 1637 , margin nos. 1691 to 1695 1710 ).

12.1.3. Deduction of the EUSt ( § 12 Abs. 1 Z 2 UStG 1994 )

The references to the case law of the Administrative Court and the ECJ on the requirements for the deduction from the import VAT in margin in 1843 will be to the decision of the Administrative Court of 27.08.2020, Ro 2019/13/0001 , and the decision of the ECJ of 08.10.2020 Rs C-621/19 , Weindel Logistik Service SR spol. s ro, added.

Rz 1843 reads:

[…]

The imported object must either be intended for use, consumption or sale. The decisive factor is whether the imported goods were used for the purposes of the taxable turnover of the taxpayer. This requirement is only fulfilled if the costs of the input services are included in the price of the output sales or in the price of the goods or services that the entrepreneur delivers or provides in the context of his economic activities (VwGH 27.8.2020, Ro 2019/13 / 0001 ; 18.10.2018, Ro 2017/15/0022 mHa VwGH 24.3.2015, 2013/15/0238 , and ECJ 8.10.2020, Rs C-621/19 , Weindel Logistik Service SR spol. S ro ;ECJ June 25, 2015, Case C-187/14 , DSV Road A / S ). See also margin nos. 1848, for exceptions see margin nos. 1854 to 1859a.

In margin no. 1848, the decision of the ECJ of October 8, 2020, case C-621/19 , Weindel Logistik Service SR spol. s ro and the VwGH decision on August 27, 2020, Ro 2019/13/0001.

Rz 1848 reads:

Persons who have only participated in the import without being entitled to dispose of the goods under VAT law (e.g. freight forwarders, carriers, commercial agents) are therefore not entitled to deduct, even if they temporarily store the imported item in accordance with the instructions of their customer or are debtors of import VAT have become a customs irregularity (see also ECJ October 8, 2020, Rs C-621/19 , Weindel Logistik Service SR spol. s ro ; ECJ June 25, 2015, Rs C-187/14 , DSV Road A / S , and VwGH August 27, 2020, Ro 2019/13/0001 ; March 24 , 2015, 2013/15/0238). See also margin no.1843.

12.2.7. Input tax deduction for cars, station wagons or motorcycles with a CO ₂ emission value of 0 grams per kilometer

In margin no. 1985, a reference to the VwGH ruling of May 19, 2020, Ra 2018/13/0091 , is incorporated with regard to input tax deduction for expenses that are predominantly non-deductible for income tax purposes.

Rz 1985 reads:

[…] In connection with passenger cars and station wagons, the acquisition costs of which are predominantly not deductible expenses (acquisition costs over 80,000 euros), no input tax deduction can be claimed on the basis of Section 12 (2) (2) lit. a UStG 1994 (cf. VwGH May 19, 2020, Ra 2018/13/0091 ) .

Example:

An entrepreneur buys an e-car with a purely electric drive for 45,000 euros including VAT. The dealer has already deducted the dealer’s share of the environmental subsidy (e-mobility bonus) from this invoice amount. The entrepreneur also receives environmental funding of 2,000 euros and an investment premium of 5,250 euros for buying a car. The entrepreneur can claim the input tax deduction of 7,500 euros and has a personal consumption tax of 833.33 euros (45,000 euros – 40,000 euros = 5,000 euros / 1.2 = 4,166.67 euros; 20% of this results in sales tax of 833.33 euros) to undertake. Neither the environmental subsidy nor the investment bonus affect the input tax deduction or the (amount of) self-consumption tax.

[…]

12.3. Exclusion from input tax deduction

In margin number 1999 a reference is corrected and the reference to the legal situation prior to 2010 is removed.

Rz 1999 reads:

In the cases of § 12. 3 3 lit. c VATA 1994 are those transactions as defined § 3a. 14 Z 7 VATA 1994 affected, according to § 3a. 14 in conjunction with Z 7 Abs. 13 lit. a VATA 1994 or Section 3a or Section 6 UStG 1994 (until December 31, 2009: Section 3a Section 10 Z 7 in conjunction with Section 9 UStG 1994) are deemed to have been carried out in a third country.

[…]

12.10. Change in the ratios of fixed assets

In margin no. 2073, the judgment of the ECJ of July 9, 2020, case C-374/19 , HF, on the input tax adjustment for mixed-use capital goods is incorporated.

Rz 2073 reads:

[…] An input tax correction must therefore be made if an item that was previously used, for example, half for the execution of taxable and unauthorized tax-free sales, is now only used for 20% for the execution of taxable and 80% for the execution of unauthorized tax-free sales , but even if, for example, the taxable use of this item ceases to exist and the item is now only used to carry out unauthorized tax-free transactions (see ECJ July 9, 2020, case C-374/19 , HF ) .

[…]

The judgment of the ECJ of November 12, 2020, case C-734/19 , ITH Comercial Timişoara SRL, is incorporated in margin no .

Margin no.2074 reads:

There is therefore no change in the circumstances:

• in the case of withdrawals, unless there is a false tax-free personal consumption (e.g. part of the building for which the input tax deduction was previously due, will be transferred to the private sector without the option of tax liability),
• in the case of deposits (for corporations under public law and associations see margin no.479),
• in the case of non-taxable transactions (e.g. restructuring within the meaning of the UmgrStG ),
• in the case of universal successions,
• if a property is vacant (even if it has been vacant for a long time, e.g. more than 2 years), if the entrepreneur still intends to use the acquired goods and services to carry out taxed transactions and demonstrably takes active steps (e.g. through advertising measures) to ensure his continue tax treated rental or lease activity (see ECJ. 11.12.2020, Rs C-734/19 , ITH Comercial Timişoara SRL ; ECJ 02.28.2018, Rs C-672/16 , Imofloresmira – Investimentos Imobiliários SA ),
• and – up to and including assessment year 2013 – upon transition from or to the agricultural flat rate (see margin no. 2857).

A reference is corrected in margin no. 2076.

Margin no.2076 reads:

If, on the other hand, the year of the service purchase (acquisition) and the year of initial use are different and the originally intended use changes before use, Section 12 (11) UStG 1994 applies (see margin nos. 2101 to 21 0 1 5 ).

[…]

14. Input tax deduction based on average rates ( § 14 UStG 1994 )

14.2. Authorization to issue ordinances

14.2.1. Input tax flat rate based on ordinances

In margin no.2251 there is an adjustment in connection with the amendment to the Horse Lump-sum Ordinance , Federal Law Gazette II No. 48/2014, which took effect from April 1 , 2020, by the Regulation, Federal Law Gazette II No. 247/2020 , by – as with the other ordinances – reference is only made to the original version of the regulation. Furthermore, the restaurant lump- sum payment ordinance, which expired on December 31, 2012, will be deleted .

Rz 2251 reads:

On the basis of the following ordinances, input taxes can be flat-rate:

• Certain professional groups, Regulation of the Federal Ministry of Finance, Federal Law Gazette No. 627/1983 , applicable from 1984;
• 1.1.2000 – 31.12.2012: Catering and accommodation trade, Regulation of the Federal Ministry of Finance, Federal Law Gazette II No. 227/1999;
• Grocery retailer or general goods dealer , Regulation of the Federal Ministry of Finance, Federal Law Gazette II No. 228/1999 , applicable from 2000 ;
• Druggists, Regulation of the Federal Ministry of Finance, Federal Law Gazette II No. 229/1999 , applicable from 2000 ;
• Commercial agent, Regulation of the Federal Ministry of Finance, Federal Law Gazette II No. 95/2000 , applicable from 2000 ;
• Artists and writers, Regulation of the Federal Ministry of Finance, Federal Law Gazette II No. 417/2000 , applicable from 2000 .;
• Hiring of third-party horses (Horse Lump sum regulation ), Regulation of the Federal Ministry of Finance, Federal Law Gazette II No. 48/2014 as amended by Federal Law Gazette II No. 159/2014, applicable from 2014 .

In margin nos. 2252 and margin nos. 2253, the statements on the restaurant lump-sum payment ordinance , Federal Law Gazette II No. 227/1999, which expired on December 31, 2012, are deleted. Furthermore, the reference to § 125 BAO is specified.

Rz 2252 reads:

The use of the generalizations is respectively usually in the not exceeded, of sales limits (§ 125. 1 BAO) bound. To determine the turnover limit, Section 125 (2) BAO is generally to be used. Transit items do not represent sales within the meaning of Section 125 ( 1) 2 BAO.

The decisive sales limits are:

• Certain professional groups, Regulation of the BMF, Federal Law Gazette No. 627/1983 : The turnover for freelance entrepreneurs must not have exceeded EUR 255,000 in the previous calendar year. For traders and traders who are not required to keep accounts, the respective limits on accounting apply. There are no turnover limits for the listed activities of non-profit organizations.
• Ordinance on the catering and accommodation trade (Federal Law Gazette II No. 227/1999; last time for the assessment for the 2012 calendar year): The turnover of the previous financial year must not have exceeded EUR 255,000 and the business must not be subject to accounting obligations (Section 2 of the VO). Only those establishments are included that offer their guests freshly prepared meals in a kitchen area (at least a “small menu”) and therefore also have the infrastructural facilities of a kitchen (VwGH 05.09.2012, 2012/15/0120).
• Ordinance on Druggists (Federal Law Gazette II No. 229/1999) : The business may not be subject to accounting obligations, nor may books be kept voluntarily.
• Ordinance on food retailers or general goods retailers (Federal Law Gazette II No. 228/1999) : The company may neither be subject to accounting obligations nor may books be kept voluntarily.
• Ordinance on artists and writers (Federal Law Gazette II No. 417/2000) : The company may neither be subject to accounting obligations nor may books be kept voluntarily.
• Ordinance on hiring foreign horses (Federal Law Gazette II No. 48/2014 as amended by Federal Law Gazette II No. 159/2014) : The entrepreneur may not be required to keep accounts, nor may books be kept voluntarily. If there are sales that lead to income for income tax purposes according to § 21 EStG 1988, the regulation is only applicable if a sales limit of 400,000 euros is not exceeded. To calculate the limit and the occurrence of the consequences of exceeding or falling below, Section 125 (2) BAO shall apply accordingly.

No turnover limit: Ordinance on commercial agents (Federal Law Gazette II No. 95/2000).

Rz 2253 reads:

If the turnover of an entrepreneur whose activity is listed in one of the ordinances under Section 14 (1) 2 UStG 1994 and who has previously made use of the flat rate according to Section 14 (1) 1 UStG 1994 exceeds the limit of EUR 220,000 , but are the prerequisites according to the regulation of the Federal Ministry of Finance, Federal Law Gazette No. 627/1983 (certain professional groups), Regulation of the Federal Ministry of Finance, Federal Law Gazette II No. 227/1999 (catering and accommodation trade), Regulation of the Federal Ministry of Finance, Federal Law Gazette II No. 228 / 1999 (food retailers or general goods retailer ), Regulation of the BMF, Federal Law Gazette II No. 229/1999 (Druggists) or Regulation of the BMF, Federal Law Gazette II No. 417/2000(Artists and writers) fulfilled, the entrepreneur can switch to the flat rate according to the regulation. In these cases, this is also possible without observing the two-year commitment period.

14.3. Conditions in connection with the authorization to issue ordinances

14.3.1. Ordinance of the BMF BGBl. II No. 227/1999 – catering and accommodation industry

The statements in margin nos. 2266 to margin nos. 2268 on the restaurant flat-rate regulation are deleted.

Rz 2266 reads:

The restaurant lump-sum regulation , VO BGBl. II No. 227/1999, expired on December 31, 2012. It was to be applied for the last time in the 2012 assessment.

See EStR 2000 margin no. 4291 to margin no. 4302 whether there is a catering and / or accommodation trade.

Marginal numbers 2267 to 2268: currently free .

Rz 2267 reads:

According to § 4 of this ordinance, input tax is to be determined at 5.5% of sales excluding beverage sales plus the actual deductible input tax amounts specified there. With regard to Section 14 (3) UStG 1994, operating income is deemed to be sales in accordance with Section 1 (1) 1 and 2 UStG 1994 plus sales from services performed abroad, unless they are unreally tax-free. The operating income does not include sales that are not genuinely exempt, sales from the sale of a business (Section 4 (7) UStG 1994) and sales from ancillary business.

Rz 2268 reads:

With regard to the lump-sum determination of self-consumption in accordance with the regulation on the establishment of estimation guidelines for determining the amount of self-consumption for certain companies and the due date of the VAT attributable to self-consumption, Federal Law Gazette No. 628/1983, it can be assumed that 15% of the Benefits in kind are not applicable.

14.5. Revocation and change of the input tax flat rate

In margin no.2303, the Restaurant Lump-sum Ordinance , Federal Law Gazette II No. 227/1999, which expired on December 31, 2012, is deleted.

Rz 2303 reads:

Was an input tax flat rate according to § 14 Abs. 1 Z 1 or Z 2 UStG 1994 , which is not based on the regulation from 1999 ( regulation of the BMF, BGBl. II No. 227/1999, regulation of the BMF, BGBl. II No. 229/1999 , Regulation of the Federal Ministry of Finance, Federal Law Gazette II No. 229/1999 and Regulation of the Federal Ministry of Finance, Federal Law Gazette II No. 230/1999 as amended by Federal Law Gazette II No. 500/1999 ), revoked before 2000, the claim is available of the flat rate ordinances from 1999 does not contradict the deadline according to § 14 Abs. 5 lit. b UStG 1994 .

16. Change in the tax base ( § 16 UStG 1994 )

16.1. Decrease, increase

In margin no. 2381 a reference to the judgment of the European Court of Justice of March 11, 2021, case C-802/19 , Z against tax office Y, regarding the reduction of the assessment basis for non-taxable (taxable) deliveries is incorporated. Furthermore, a reference to the judgment of the European Court of Justice of May 28, 2020, case C-684/18 , Word Comm Trading Gfz SRL, regarding the obligation of the service recipient to adjust input tax due to the change in the tax base is included.

Rz 2381 reads:

The prerequisite for the correction obligation is the existence of a taxable turnover. In the absence of a tax or input tax amount, a tax-free turnover does not trigger a correction obligation, regardless of whether the tax-free turnover is associated with the loss of the input tax deduction or not (see ECJ 11.3.2021, case C-802/19 , Z against tax office Y ). On the other hand, the obligation to make the correction remains in the case of taxable sales even if this is carried out to an entrepreneur who is not entitled to input tax deduction. For the performing entrepreneur, the only decisive factor is the fact that the assessment basis for his (taxable) turnover has changed. The obligation of the performing entrepreneur to make corrections is offset by the obligation of the recipient of the service to make an input tax correction (see ECJ May 28, 2020, Case C-684/18 , World Comm Trading Gfz SRL ) . The obligation to correct input tax only applies to the recipient of the service who is fully or partially entitled to input tax deduction.

16.2. Bankruptcy proceedings

2401 is adapted to the current terminology.

Rz 2401 reads:

The opening of insolvency proceedings shall not affect the business status of the community (bankruptcy) S s chuldners. The joint (insolvency) debtor remains the subject to be attributed to the services performed by or to the estate and the tax debtor (VwGH 27. 0 5.1998, 93/13/0052 ).

[…]

In margin no. 2405, the statement in the second sentence of the first paragraph is made more precise by replacing the word “to be registered” with the words “to be carried out or to be determined”.

Rz 2405 reads:

For the classification of the VAT claim under insolvency law, it must be assumed that the irrecoverability within the meaning of Section 16 (3) UStG 1994 usually occurs before the opening of insolvency proceedings and that this claim for repayment therefore represents an insolvency claim. The input tax adjustment must therefore be registered or set as tax for the last pre-registration period before the opening of insolvency proceedings .

[…]

19. Tax debtor, origin of tax liability ( § 19 UStG 1994 )

19.1.1.3. Transfer of tax liability (legal situation from January 1, 2012)

In margin no. 2601b, the remarks on the scope of the transfer of tax liability in the section “Performing entrepreneurs” are changed on the basis of the judgment of the European Court of Justice of June 3, 2021, case C-931/19 , Titanium Ltd, since according to this, a property rented in a member state does not have any Permanent establishment within the meaning of Article 43 of the VAT Directive 2006/112 / EC and Articles 44 and 45 of the VAT Directive 2006/112 / ECas amended by RL 2008/8 / EG if the owner of the property does not have his own staff there for the performance in connection with the rental, which enables them to act autonomously. In this case, the landlord is not a domestically resident entrepreneur, so that the rental revenues generated by him are not excluded from the transfer of tax liability to the recipient of the service.

In addition, in the section “Input tax deduction for foreign service recipients without a permanent establishment in Austria”, the reference to Section 19 (1e) UStG 1994 in brackets has been updated.

Rz 2601b reads:

[…]

Performing entrepreneur

The prerequisite for the transfer of the tax liability is that the performing entrepreneur neither operates his company in Germany nor has a permanent establishment involved in the provision of the service in Germany. The point in time at which the service is carried out is decisive for assessing this requirement.

Entrepreneurs who own a property located in Germany and rent it out for tax purposes must be treated as domestic entrepreneurs in this respect (ie with regard to rental sales). You have to declare this turnover in the assessment procedure.

The recipient of the service does not owe the tax on these sales.

The fact that an entrepreneur is registered for sales tax at the Austrian tax office does not indicate that he is domiciled.

From 01/01/2022 entrepreneurs who have for a down domestic property and taxable rent apply only as domestic businessmen ,if they have at home or in the property its own staff for the provision of services in connection with the rental, which for autonomous action qualified (see ECJ 3.6.2021, case C-931/19 , Titanium Ltd. ) . If an entrepreneur who is not domiciled in Germany actually assumed the transfer of tax liability for his rental sales due to a legal interpretation in accordance with Union law before January 1, 2022, this is not objectionable – apart from cases of abuse of law.

[…]

Input tax deduction for foreign service recipients without a permanent establishment in Austria

If the foreign entrepreneur has only carried out other services or supplies of works for which the recipient of the service owes the tax, he has to claim his input tax in the reimbursement procedure, except if he himself owes a tax as the recipient of the service.

This also applies if the foreign entrepreneur has carried out construction work within the meaning of Section 19 (1a) of the UStG 1994 or other other services for which the tax liability is transferred to the recipient of the service in accordance with Section 19 (1), second sentence, of the UStG 1994 and subsidiary according to another provision ( e.g. from July 1, 2010 the transfer of greenhouse gas emission certificates within the meaning of Section 19 (1e) lit. a UStG 1994 by a foreign entrepreneur).

[…]

19.1.1.4. Accounting

In margin no. 2602 it is additionally clarified that in the case of tax-exempt sales for which there is an option to tax liability and for which this tax liability is transferred to the recipient of the service (e.g. taxable rentals by non-domestic entrepreneurs), the option can also be exercised by submitting an invoice with appropriate information can be.

Rz 2602 reads:

[…]

Whether an invoice is issued and whether it refers to the tax liability of the service recipient has no influence on the transfer of the tax liability.

In the case of tax-exempt sales for which an option to tax liability is possible (e.g. rental for business purposes), the option can also be exercised in cases of transfer of tax liability by means of corresponding information in the invoice. The option to tax liability, the type and scope of the service and the transfer of the tax liability to the recipient of the service must emerge from this information.

To change the obligation to issue invoices in certain cases when the tax liability is transferred from January 1, 2013, see margin no. 1501b.

19.1.2. Transfer of tax liability in the construction industry

19.1.2.2. Construction work ( Section 19 (1a) third sub-paragraph UStG 1994 )

In margin no. 2602c, the information that the cleaning of buildings from 1.1.2011 can also be a construction work that leads to the transfer of tax liability in accordance with Section 19 (1a) UStG 1994 has been removed.

Rz 2602c reads:

Construction services are all services that serve the production, repair, maintenance, modification, removal or cleaning (from January 1, 2011) of buildings (see ECJ December 13, 2012, case C-395/11 , BLV Wohn und Gewerbebau GmbH ) .

[…]

If they are to be assessed as independent main services, the following services are not construction services:

• Exclusively planning services (e.g. by structural engineers, architects, garden and interior designers, surveyors and civil engineers).
• Transport services including loading and unloading. Likewise, the collection of building rubble, even if the order is for (subsequent) disposal of the building rubble.
• The rental of equipment (provision without personnel), as well as the implementation of repair and maintenance work on construction equipment, even if the work is carried out on the construction site.
• Until December 31, 2010: The mere cleaning of rooms or surfaces, e.g. windows, unless it is an ancillary service to other activities to be qualified as construction work. Likewise the final cleaning of the building. (A construction work, on the other hand, is a cleaning process in which the surface to be cleaned is changed, e.g. when the surface is sanded or blasted).
• Pure maintenance work on structures or parts of structures, as long as parts are not changed, processed or exchanged. Minor changes (e.g. replacement of fuses or lamps during maintenance of elevator systems) do not yet lead to construction work.

[…]

• Provision of workers

If an entrepreneur employs hired workers as part of a construction work to be performed by him, the answer to the question of whether these perform a construction work should not be based on the work actually performed by them, but rather whether they are active in the context of a construction work (e.g. a loaned worker supervises the building; a loaned technician carries out technical drawings as part of the construction work). The case would be assessed differently if it is not a question of hired workers, but of self-employed entrepreneurs who provide the services mentioned.

• If joint management fees are charged to the consortium for the management (lead management) by a building contractor who is a member of the consortium, it can be assumed that these are construction services. Likewise in the case of the provision of personnel (e.g. the site manager) by an ARGE partner to the ARGE.
• When providing labor, it does not matter whether the labor is provided to an entrepreneur who usually performs construction work . The decisive factor is whether the hirer actually uses the workers in the context of a construction work. This would have to be made known to the lender accordingly.
• For the sake of simplicity, when assessing whether the hired worker is performing construction work, the predominance can be assumed. If the workforce is used for more than 50% of the total work (in terms of time) in the context of construction work, a construction work can be assumed overall; in the opposite case, there is no overall construction work. In borderline cases (e.g. it has not yet been determined whether construction work will ultimately be carried out), construction work can be assumed.
• If a (general) contractor commissions another contractor to provide workers to perform construction work and if this contractor in turn instructs a further (third) contractor to provide workers to perform these construction work (multi-tier provision of personnel), the same applies to the service of the third contractor to his client for a construction work.
• Cleaning of buildings (legal situation from January 1, 2011)

Not only the final cleaning of the building is covered, but every cleaning of rooms or areas that are part of a building. Construction work therefore includes, for example, cleaning buildings, facades, windows, swimming pools, sewers (removing blockages, sewer flushing, etc.), streets and parking lots (clearing snow, sweeping, washing streets, etc.).

[…]

The heading for section 19.1.4. is changed and reads:

19.1.4. Transfer of tax liability for gas, electricity, heating and cooling deliveries via distribution networks ( § 19 Paragraph 1c UStG 1994 )

The margin no. 2604c, which relates to the legal situation from 2005 to 2011, is no longer applicable and the reference to the currently available marginal numbers in this section is adapted accordingly.

Marginal numbers 2604 to 2604 b c : currently free .

Rz 2604c reads:

Legal situation from January 1, 2005:

In the case of deliveries of gas via the natural gas network or of electricity by an entrepreneur who has neither domicile (seat) nor their habitual abode or a permanent establishment in Germany to a customer who is registered in Germany for sales tax purposes, the recipient of the service is liable for tax ( 19 para. 1c UStG 1994).

The delivering entrepreneur is liable for this tax.

Example 1:

The Hungarian electricity company U supplies electricity to Austria to the electricity trader Ö. The delivery of the U is effected in Austria in accordance with § 3 Paragraph 13 UStG 1994. According to § 19 Abs. 1c UStG 1994 there is a transfer of the tax liability from U to Ö.

Example 2:

The Italian electricity company I supplies electricity to carpentry K in Carinthia for their carpentry business. Since K is not a “reseller”, the place of delivery is determined in accordance with Section 3 (14) of the UStG 1994, i.e. where K uses or consumes the electricity.

This is the place where the K joinery counter is located. The tax liability is transferred from I to K.

As of January 1, 2010, a permanent establishment in accordance with Community law is such a permanent establishment within the meaning of the case law of the European Court of Justice and is only not detrimental to the transfer of tax liability if it is not involved in the provision of the service.

In margin no. 2604d, the reference to the entry into force of the legal situation presented there is deleted.

Rz 2604d reads:

Legal situation from January 1, 2011:

The tax liability for supplies

• of gas via natural gas networks in general (not only via the natural gas distribution network),
• of electricity,
• of heat via heating networks and
• from cold to cold networks

passes to the recipient of the service if

• this is recorded in Germany for value added tax and
• the supplier is not domiciled in Germany (margin no.2604f).

The supplier is liable for the tax.

In margin no.2604f, the reference to the omitted margin no.2604c is removed.

Rz 2604f reads:

[…]

Regarding the permanent establishment and its participation in the provision of services, see also margin nos. 2604c and 2601a.

19.2. Origin of the tax liability

19.2.1.1. Down payments

An adjustment is made in margin no. 2607 with regard to the changes to § 23 UStG 1994 .

Rz 2607 reads:

[…]

• Accommodation trade and travel services : The sales taxation of the down payments can be omitted if these do not exceed 35% of the taxable service price in the accommodation trade and in connection with travel services . If the down payments are more than 35%, the down payments are fully taxable.

[…]

21. Pre-registration and advance payment, assessment ( § 21 UStG 1994 )

21.10. Input tax reimbursement to foreign entrepreneurs (legal situation for reimbursement applications submitted from 1.1.2010)

21.10.1. Input tax reimbursement to entrepreneurs based in other EU member states

The input tax reimbursement procedure for entrepreneurs based in the community will be adjusted in margin nos. 2836 to 2838 to the changes introduced by Regulation BGBl. II No. 16/2021 . References will also be adapted.

Rz 2836 reads:

The input tax reimbursement for entrepreneurs resident in the rest of the Community, who have neither a registered office nor a permanent establishment in Germany, is only available in the areas specified in Section 1 (1) of the Ordinance of the Federal Ministry of Finance, Federal Law Gazette No. 279/1995 id g F Federal Law Gazette II No. 222/2009 or Federal Law Gazette II No. 158/2014 are permitted. If the entrepreneur based in the rest of the community has a permanent establishment in Austria according to § 29 BAO and this is to be qualified as a permanent establishment from which no sales are generated (see ECJ October 25, 2012, case C-318/11 , Daimler ), the Input tax reimbursement can be carried out by the Austrian tax office, Graz-Stadt office. The that the establishment assigned competent department of the tax office is Austria the tax refund by notice to the tax office Austria, has the office of Graz-Stadt , be informed accordingly. delegate. In these cases, the tax office for large companies has to delegate the input tax reimbursement to the tax office Austria by means of a notification.

Entrepreneurs resident in the rest of the Community area who are other than those listed in Section 1 Paragraph 1 Z 2 to 4 of the Ordinance of the Federal Ministry of Finance, Federal Law Gazette No. 279/1995 id g F Federal Law Gazette II No. 222/2009 or Federal Law Gazette. II No. 158/2014 in Germany are assessed according to § 60 Abs. 2 Z 2 BAO as amended in Federal Law Gazette I No. 104/2019 (FORG) at the Austrian tax office, Graz-Stadt department. For information on the rental of real estate by foreign entrepreneurs, see margin no.2601a.

This does not apply in particular to entrepreneurs who are subject to a special regulation in accordance with Art. 369a to 369k VAT Directive 2006/112 / EC in Germany or in another Member State and who are not obliged to submit a tax return in accordance with Section 21 (4) UStG 1994 (cf. Art. 25a para. 15 UStG 1994 id g F BGBl. I No. 40/2014 ).

[…]

Rz 2837 reads:

[…]

In a reimbursement period chosen once by the entrepreneur in accordance with Section 2 of the Regulation of the Federal Ministry of Finance, Federal Law Gazette No. 279/1995 id g F Federal Law Gazette II No. 222/2009, only one (summarized) application can be made for one and the same period . Only entrepreneurs based in Northern Ireland can, in addition to an application for deliveries, also submit an input tax refund application for other services for the same period in accordance with the requirements for third-country entrepreneurs (see margin no. 148).

An application can, however, also contain deductible input taxes that fall in previous reimbursement periods of the application year, provided they have not yet been claimed and the deadline for submitting the reimbursement application for these reimbursement periods (September 30 of the following year) has not yet expired.

[…]

Rz 2838 reads:

[…]

21.10.1.3.2. Deadline

The deadline for submitting the reimbursement application ends on September 30th of the following year ( Section 3 Paragraph 1 of the Regulation of the Federal Ministry of Finance, Federal Law Gazette No. 279/1995 id g F Federal Law Gazette II No. 222/2009 ).

This deadline is provided as a deadline in Directive 2008/9 / EC , OJ No. L 44 of February 12, 2008 p. 23 and therefore cannot be extended in accordance with the provisions of the national BAO (neither by requesting a deadline extension nor by including it in the list of deadlines, see also ECJ June 21 , 2012 , case C-294/11 , Elsacom NV ).

[…]

21.10.1.3.4. Notification delivery

The notification is sent to the tax administration in the country of residence using the same electronic means as the reimbursement application was received by the tax administration in the reimbursement country.

The country of residence decides on the type of delivery (via the electronic portal of the country of residence or in paper form). The delivery is deemed to have been effected when it arrives in the electronic portal of the member state in which the entrepreneur is based, if the country of residence provides for electronic delivery (by means of an electronic mailbox) ( Section 3 Paragraph 3 of the Regulation of the Federal Ministry of Finance, Federal Law Gazette No. . 279/1995 as amended by Federal Law Gazette II No. 16/2021; to be applied from the calendar year 2021).

Those entrepreneurs whose countries of residence refuse to deliver the notices to the Austrian tax authorities will receive the notification directly to the email address given in the reimbursement application (cf. § 3 Paragraph 3 of the Ordinance of the Federal Ministry of Finance, Federal Law Gazette No. 279 / 1995 as amended by Federal Law Gazette II No. 174/2010) . The delivery of the e-mail is deemed to have been effected when it is sent, unless the applicant proves that the e-mail was not delivered to him (cf. § 3 Paragraph 3 in conjunction with § 3 Paragraph 1 of the Ordinance of the Federal Ministry of Finance, Federal Law Gazette No. 279/1995 as amended).

21.10.1.3.5. Compensation for default

If the reimbursement is not made within the stipulated period, the applicant is entitled to payment of late payment ( Section 3 Paragraphs 4 to 11 of the Regulation of the Federal Ministry of Finance, Federal Law Gazette No. 279/1995 id g F Federal Law Gazette II No. 222/2009 ).

[…]

Rz 2842 and its heading are not applicable. The statements on the entry into force of the currently valid version, VO BGBl. II No. 16/2021 , have been adopted in margin no.2838 .

21.10.1.6. Come into effect

Rz 2842 reads:

The regulation of the Federal Ministry of Finance, Federal Law Gazette No. 279/1995 as amended by Federal Law Gazette II No. 222/2009 applies to applications for reimbursement submitted after December 31, 2009. The period to which the reimbursement application relates is therefore not decisive.

The regulation of the Federal Ministry of Finance, Federal Law Gazette No. 279/1995 as amended by Federal Law Gazette II No. 158/2014 applies to reimbursement applications that concern input tax amounts that fall in the 2015 calendar year.

Marginal number en 2841 and 2842: currently free .

21.10.2. Input tax reimbursement to entrepreneurs based in third countries

The input tax reimbursement procedure for entrepreneurs based in a third country will be adapted in margin nos. 2843 to 2845 to the changes introduced by Regulation BGBl. II No. 16/2021 . References are also adapted.

Rz 2843 reads:

The input tax reimbursement for entrepreneurs resident in third country territory who have neither a registered office nor a permanent establishment in Germany is only available in the areas listed in Section 1 (1) of the Ordinance of the Federal Ministry of Finance, Federal Law Gazette No. 279/1995 id g F Federal Law Gazette II No. . 222/2009 or Federal Law Gazette II No. 158/2014 are permissible. If the entrepreneur based in a third country has a permanent establishment in Austria according to § 29 BAO and this is to be qualified as a permanent establishment from which no sales are generated , the input tax reimbursement should be carried out by the Austrian tax office, Graz-Stadt office. The the the establishment assigned competent department of theTax office there Austria the tax refund by notice to the tax office Austria, has the office of Graz-Stadt , be informed accordingly. delegate In these cases, the tax office for large companies has to delegate input tax reimbursement to the tax office in Austria (see also margin no. 2836).

Entrepreneurs based in third country territory who are other than those listed in Section 1 Paragraph 1 Z 2 to Z 4 of the Ordinance of the Federal Ministry of Finance, Federal Law Gazette No. 279/1995 id g F Federal Law Gazette II No. 222/2009 or Federal Law Gazette II 158/2014 in Germany are assessed for sales tax at the Austrian Tax Office, Graz-Stadt office , in accordance with Section 60 (2) No. 2 BAO as amended by Federal Law Gazette I No. 104/2019 (FORG). For information on the rental of real estate by foreign entrepreneurs, see margin no.2601a.

Rz 2844 reads:

The reimbursement period can optionally be a minimum of three months to a maximum of one calendar year. The reimbursement period can be shorter than three months if the application relates to the last months of the calendar year (e.g. November and December or December only). This application may also contain deductible input taxes that fall in previous reimbursement periods of the application year.

In a reimbursement period chosen once by the entrepreneur in accordance with Section 2 of the Regulation of the Federal Ministry of Finance, Federal Law Gazette No. 279/1995 id g F Federal Law Gazette II No. 222/2009 , only one (summarized) application can be made for one and the same period . If a supplementary application is submitted before the submission deadline (30 June of the following year, see the following margin no.2845), this is only to be taken into account if the entrepreneur can simultaneously prove that this is not a double reimbursement. Additional requests for reimbursement in appeal proceedings can only be considered if they are made within the submission deadline.

Rz 2845 reads:

The applicant shall refund request with the purpose provided en Form U 5 without exception in writing (electronic or by fax) to the responsible for the implementation of the redemption procedure in Austria Austria tax office, office of Graz-Stadt bring. The application must be signed by the taxpayer himself or by his authorized representative (ECJ 0 3.12.2009, Rs C-433/08 , Yaesu Europe BV ).

21.10.2.3.2. Entrepreneur certificate

In order to receive an input tax reimbursement according to the regulation of the Federal Ministry of Finance, Federal Law Gazette No. 279/1995 id g F Federal Law Gazette II No. 222/2009 , the (foreign) entrepreneur who does not generate any sales in Germany must provide a certificate of the state in which he is resident, provide evidence that he is registered as an entrepreneur under a tax number ( Section 3a Paragraph 1 of the Regulation of the Federal Ministry of Finance, Federal Law Gazette No. 279/1995 id g F Federal Law Gazette II No. 222/2009 ). This formal requirement of the existence of a certificate of entrepreneurial status cannot be waived.

[…]

Rz 2849 and its heading are deleted. The statements on the entry into force of the currently valid version, VO BGBl. II No. 16/2021, are incorporated in margin no.2846.

Rz 2846 reads:

Excluded from the reimbursement are the input tax amounts that apply to the purchase of fuel after January 14, 2021 ( Section 3a (2) of the Regulation of the Federal Ministry of Finance, Federal Law Gazette No. 279/1995 as amended by Federal Law Gazette II No. 16/2021) . The exclusion applies to all types of fuels and therefore also includes, for example, fuels for ships, but not, for example, agents for exhaust gas aftertreatment.

The reimbursement procedure is not applicable for deliveries of items that

• are exempt from tax or
• according to Art. 7 UStG 1994 (intra-community delivery) can be exempted if the delivered items are dispatched or transported by the purchaser or for his account (Art. 171 para. 3 M W w St-RL 2006/112 / EG).

[…]

21.10.2.7. Come into effect

Rz 2849 reads:

The regulation of the Federal Ministry of Finance, Federal Law Gazette No. 279/1995 as amended by Federal Law Gazette II No. 222/2009 applies to applications for reimbursement submitted after December 31, 2009. The period to which the reimbursement application relates is therefore not decisive.

The regulation of the Federal Ministry of Finance, Federal Law Gazette No. 279/1995 as amended by Federal Law Gazette II No. 158/2014 applies to reimbursement applications that concern input tax amounts that fall in the 2015 calendar year.

Marginal number 2849: currently free.

22. Taxation of sales in agricultural and forestry operations ( § 22 UStG 1994 )

22.1.1.1. Genuinely tax-exempt sales (export delivery and intra-community delivery)

In margin no. 2854, a reference to margin no. 3714 ff. Is added with regard to the regulations that also apply to flat-rate farmers regarding intra-Community mail order. In addition, for the sake of completeness, a reference to margin no. 4339 regarding the application for a VAT ID by flat-rate farmers and foresters is inserted.

Rz 2854 reads:

The application of the real exemption provisions of § 6 Abs. 1 Z 1 to 6 and Art. 7 UStG 1994 is excluded within the framework of the special provision of § 22 UStG 1994 , so that such sales entitle or oblige to separate tax identification in the invoices (for intra-community deliveries see margin no. 3988; on ZM submission obligation margin no. 4154 ; on applying for a UID see margin no. 4339 ). The invoiced sales tax can be reimbursed to foreign entrepreneurs.

For additional tax see margin no.2873 , for intra-Community mail order see margin no.3714 ff .

22.1.1.3. Input tax adjustment in the event of a change in circumstances

In margin no. 2856, the example is specified and adapted to the current legal situation.

Rz 2856 reads:

If an input tax deduction is asserted within the framework of standard taxation, then in the event of a later connection – also when applying flat-rate taxation – there is a connection with incorrectly tax-exempt sales, e.g. when renting or selling a building or transferring it free of charge within 19 years (or 9 years; see margin no. 2081) after the first use , to correct the input tax deduction made within the framework of standard taxation.

Example:

In 2006 a barn will be built. The barn is in use from 2006. The input tax deduction made in 2006 amounts to a total of 5,000 euros. In 2011 the agricultural and forestry business was handed over to the son free of charge.

The removal of the property (barn) is spuriously exempt from sales tax. In 2011, the input tax deduction must be corrected by five tenths, 2,500 euros.

A farmer subject to regular taxation built a machine hall in 2014 for the purposes of agricultural and forestry operations and used it in the same year. The input tax deduction made in 2014 amounts to a total of 10,000 euros. From 2020, the farmer will reduce his business activities and rent the warehouse tax-free to the neighboring municipality for the purpose of using their building and farm yard, which is entirely part of the sovereign area. In January 2021, the farmer cancels the option declaration made at the time and switches back to flat-rate taxation in accordance with § 22 UStG 1994 at the beginning of the year . In 2023, the farmer finally sells the machine hall tax-free to the municipality.

With regard to the rental of the machine hall to the municipality from 2020 onwards , it is not possible to opt for tax liability in accordance with Section 6 (2) UStG 1994 , as the tenant only uses the hall for sales that do not entitle it to input tax deduction. The rental is therefore compulsorily tax-free according to § 6 Abs. 1 Z 16 UStG 1994 and leads to a proportional annual adjustment of the input tax deduction according to § 12 Abs. 10 UStG 1994 in the amount of 500 euros (1/20 of 10,000 euros).

The change back to flat-rate taxation from 2021 will not result in any new changes in the conditions with regard to the machine hall, since the machine hall is not rented out as part of the agricultural and forestry business (see margin no.2881). An annual input tax adjustment of EUR 500 must still be made.

The sale of the property, including the machine hall, which will take place in 2023, is spuriously exempt from sales tax in accordance with § 6 Paragraph 1 Z 9 lit. In 2023, a correction of the input tax deduction in the amount of 11/20, that is 5,500 euros, must be made.

In margin no. 2857a, minor editorial changes are made as well as an adjustment to the amendment to the Agriculture and Forestry Flat- Rate Ordinance 2015 made with effect from January 1, 2020 by the Regulation BGBl. II No. 559/2020 (in particular the increase in the assessment of ancillary businesses and secondary activities relevant EUR 33,000 limit to EUR 40,000).

Rz 2857a reads:

Items that were first used as fixed assets after December 31, 2013:

With regard to the input tax adjustment in accordance with Section 12 (10) and (11) UStG 1994, e.g. in connection with the sale and removal of objects, see margin no. 2856.

If after December 31, 2013 there is a change in the application of the general provisions and the provisions of § 22 UStG 1994 for input tax deduction (change from average rate taxation to regular taxation or (back) change to flat rate), this is in accordance with § 12 para 12 second sentence UStG 1994 in the version AbgÄG 2012, Federal Law Gazette I No. 112/2012, from the tax year 2014 a change in the situation within the meaning of Section 12 (10) and (11) UStG 1994 , which can lead to an input tax adjustment. In the case of fixed assets, the transitional regulation according to § 28 Paragraph 39 Z 4 UStG 1994 in the version of Federal Law Gazette I No. 63/2013 must be observed.

There is also a change in the situation within the meaning of Section 12 (12) UStG 1994 if the taxation method changes due to exceeding or falling below the accounting limits or the turnover limit of 400,000 euros. The same applies in connection with secondary activities, which according to the LuF Flat Rate Regulation 2015 , Federal Law Gazette II No. 125/2013 or – before its scope of application – LuF Flat Rate Regulation 2011 , Federal Law Gazette II No. 471/2010 as amended, no longer or again as Agricultural and forestry secondary operations or secondary business are to be assessed (e.g. treatment or processing of own or purchased primary products within the meaning of margin no. 2893 f. if the income limit of 40,000 [before 1.1.2020: 33,000 ] euros is exceeded or fallen below ).

[…]

22.2. Additional tax

Margin no. 2871 is attached to the changes made to Section 22 (2) UStG 1994 (temporary [from July 1, 2020 to December 31, 2021]) by BG BGBl. I No. 60/2020 and BG BGBl. I No. 48/2020 “Corona-related” elimination of the additional tax at the Buschenschank and Almausschank) adjusted. In this context, a reference to margin no. 3543 (“Agricultural gastronomy”) is included.

Rz 2871 reads:

For deliveries made within the framework of an agricultural or forestry operation (and for own consumption , which is equivalent to deliveries) which is neither under the benefit of Section 10 (3) No. 11 UStG 1994 nor under the – for after 30.6.2020 and before 01/01/2022 sales executed applicable – “corona induced” benefits in accordance . § 28 51 Z 1 and Abs. 52 1 lit. a VATA 1994 (see in detail Rz 3543) covered ,Drinks and alcoholic liquids still listed in the annexes (e.g. wine served in a local tavern, home-made spirits, fruit juices) are subject to an additional tax of 10%, if the turnover is made to an entrepreneur for his company, of 7% (until 31.12. 2015: 8%) of the assessment base without any further input tax deduction being possible. The general provisions of the VAT Act apply to the additional tax, including the provisions on tax exemptions, record-keeping obligations, advance VAT returns and VAT returns. Since the additional taxation is a supplement to the average rate taxation, the application of the small business exemption according to § 6 Abs. 1 Z 27 UStG 1994 is but also excluded for these sales carried out in the context of an agricultural and forestry operation.

[…]

22.3.9. Granting other easements

In margin no. 2884, a response from the Federal Ministry of Finance about the leasing of agricultural land for the purpose of setting up and operating photovoltaic systems is incorporated.

Rz 2884 reads:

With the release of plots of land by flat-rate farmers and foresters for fenced probe courts, other operating systems (eg transformer stations, gas pressure regulating stations), wind turbines or putting up cell phone towers is Letting within the meaning of § 6 para. 1 16 UStG 1994 before that are not in the The scope of § 22 UStG 1994 falls (see margin no. 2881) . In the case of the leasing of agricultural land for the purpose of setting up and operating photovoltaic systems, this also applies if the farmer has contractually reserved the use of the underlying land for agricultural purposes (e.g. keeping chickens) (see ECJ November 18, 2004, case C-284 / 03 ,Temco Europe SA).

22.4.1.1. Treatment or processing of own or purchased primary products

Rz 2893 is linked to the amendment to the Agriculture and Forestry Flat- Rate Ordinance 2015 made by Federal Law Gazette II No. 559/2020 with effect from January 1, 2020 (in particular the increase in the EUR 33,000 limit for the assessment of ancillary businesses and secondary activities to EUR 40,000 ) customized. In addition, statements about the Almausschank and the Mostbuschenschank are included with reference to the corresponding income tax provisions.

Rz 2893 reads:

According to § 7 Paragraphs 3 and 4 of the ordinance of the Federal Ministry of Finance, Federal Law Gazette II No. 125/2013 id g F , Federal Law Gazette II No. 164/2014 on the establishment of average rates for determining the profit from agriculture and forestry ( LuF-PauschVO 2015 ) or – for assessment periods before 2015 – according to § 6 para. 4 LuF-PauschVO 2011 , Federal Law Gazette II No. 471/2010 , the treatment or processing of primary products by a farmer and forestry is under the Criteria listed there (especially if the income limit of 40,000 [before 1.1.2020: 33,000 ] is exceeded ]Euros) due to a lack of economic subordination in relation to the main agricultural and forestry business, not allocated to income from agriculture and forestry. Revenues from the treatment or processing of agricultural and forestry primary products that cannot be allocated to income from agriculture and forestry under income tax law (see EStR 2000 margin no. 4215 to margin no. 4220a and – for economic subordination in the case of a plurality of ancillary businesses and / or secondary acquisitions – EStR 2000 margin nos. 4208a and 4208b), are also not included in sales from agriculture and forestry under sales tax law. These sales are to be taxed according to the general rules of the U StG 1994 sales tax law for the entire assessment period in which the economic subordination according to the income tax principles is not given . The existence of an agricultural and forestry processing plant must be assessed separately for each assessment period. The same principles also apply to the Almausschank within the meaning of Section 7 (1) LuF-Flat-Rate Ordinance 2015 .

The treatment and processing of agricultural primary products for the purpose of administration in the farm’s own Buschenschank is not a secondary operation, but a direct part of the main agricultural operation. The related sales are therefore subject to average rate taxation and, in accordance with Section 22 (2) UStG 1994, to additional tax. The associated input taxes are taken into account within the framework of flat-rate taxation. Rz 2894 does not apply in these cases. For income tax treatment and the distinction from commercial operations, see EStR 2000 margin nos . 4231 to 4241 . The same applies to the Mostbuschenschank (Buschenschank within the framework of fruit growing, including non-alcoholic drinks and meals) in the sense of§ 6 LuF flat rate regulation 2015 (see also EStR 2000 margin no. 4240 ).

For tax purposes for assessment periods from 2009 onwards, the Primary Products Ordinance , Federal Law Gazette II No. 410/2008 as amended , is decisive for the distinction between original production and processing (see EStR 2000 margin no. 4220 , 4220a and margin no. 5123 ). The treatment and / or processing of products that are not primary products does not constitute an auxiliary agricultural or forestry activity. The Primary Products Ordinance is irrelevant for the purpose of additional taxation of certain beverage deliveries ( § 22 Paragraph 2 UStG 1994 ).

Example:

The production of mead is considered to be original production according to the Urproducts Ordinance.

The related sales are therefore not to be taken into account for the purpose of calculating the 40,000 [before 1.1.2020: 33,000 ] euro limit. This activity is directly attributable to the main agricultural and forestry operations and the sales are therefore subject to flat-rate taxation. The additional tax according to § 22 Abs. 2 UStG 1994 in the amount of 7% (until 31.12.2015: 10 or 8%) is to be paid if the drink is consumed on the farm (e.g. in a wine tavern ) (for the temporary “corona-related” Elimination of the additional tax in accordance with Section 22 Paragraph 2 in conjunction with Section 28 Paragraph 52 Z 2 UStG 1994 see margin no. 3543). There is no additional tax when selling self-produced mead on the farm (see margin no. 2872).

22.4.3. Sideline and sideline jobs

An editorial correction is made in margin no. 2896. In addition, in connection with the EStR 2000 maintenance 2021 (see BMF decree of 6.5.2021, 2021-0.103.726 , BMF-AV No. 65/2021), the reference to the EStR 2000 will be adjusted.

Rz 2896 reads:

Other secondary activities are equated with secondary agricultural operations, i.e. activities which, because of their close connection with the main activity and because of their subordinate importance, are absorbed in it. The assessment of the existence of an agricultural or forestry secondary activity must be based on the overall picture of the circumstances, whereby not only the turnover ratios, but also the ratio of capital and working time, the earnings situation and the absolute amount of sales and profits must be taken into account (cf. VwGH December 21 , 2010 , 2009/15/0001 ,for the care of public green spaces). The commercial law assessment is not decisive. The agricultural and forestry sideline activities can include, for example, the provision of carriage services, logging for third parties or the provision of services within the framework of inter-company cooperation ( neighborhood help ) under the conditions mentioned . See EStR 2000 margin no. 4201 to margin no. 4208 b .

[…]

22.4.3.1. Private room rental

In margin no. 2897 in connection with the EStR 2000 maintenance 2021 (see BMF decree of 6.5.2021, 2021-0.103.726 , BMF-AV No. 65/2021), a reference to EStR 2000 margin no. 5073 on the economic subordination of private room rental with or without additional services (legal situation from 2020) added.

Rz 2897 reads:

Income from farmers and foresters, which are obtained from renting private rooms (with or without breakfast), are to be treated as sales from secondary farming and forestry if the room rental can be viewed as economically subordinate. The question of economic subordination will depend on the respective circumstances of the individual case. Renting a room that extends to more than ten beds can no longer be viewed as subordinate (see EStR 2000 margin no. 4193 and – to determine the ten-bed limit – margin no. 4193a and [for assessment periods from 2021] margin no. 5073). With regard to the average tax rates to be applied from May 1, 2016 to October 31, 2018, see margin nos. 2853a in conjunction with margin nos. 1368 to 1370 and – for transitional provisions for accommodation services up to and including December 31, 2017 – margin nos. 1403.

The heading of section 22.4.3.3. is generalized by referring now to the disposal and recycling of organic waste of all kinds and not just sewage sludge.

22.4.3.3. Disposal and recovery of organic waste from sewage sludge

Rz 2900 will be changed in connection with the amendment to the Agriculture and Forestry Flat Rate Ordinance 2015 made with effect from 1.1.2020 by Federal Law Gazette II No. 559/2020 .

Rz 2900 reads:

If a farmer applies organic waste (e.g. sewage sludge ) to his fields for a fee within the framework of soil protection regulations (see margin no. 1327a), the farmer’s disposal service is not an agricultural activity, but basically a commercial activity. if the collection and composting of third-party, compostable waste is carried out using the methods customary in agriculture and forestry (see margin no. 2891) and in accordance with income tax principles (in accordance with Section 7 Paragraphs 2 and 4 LuF Flat Rate Regulation 2015 , Federal Law Gazette II No. . 125/2013 as amended ( [ until December 31, 2014 :Section 6 (2) and (4) LuF Flat Rate Regulation 2011 , Federal Law Gazette II No. 471/2010 as amended ] ) , economic subordination can be assumed in relation to the main agricultural and forestry business (relevance of the 33,000 euro limit) . If these requirements are met, the farmer’s disposal service can be covered by the flat-rate regulation of § 22 UStG 1994 .

The sale of reusable products obtained from the garbage must be considered separately (margin no. 1322). This includes the sale of recovered through the composting en compost.

22.5. Agriculture and forestry as a separately managed operation

With regard to the amendment to the LuF Flat Rate Regulation 2015 made with effect from 1.1.2020 by Federal Law Gazette II No. 559/2020 (including an increase in the partial lump sum limit for forestry from 11,000 to 15,000 euros), margin no.2907 including the example adjusted accordingly. Since, due to the KonStG 2020, Federal Law Gazette I No. 96/2020 , the standard value as a criterion for the accounting obligation no longer applies with effect from 1.1.2020, the value of the LuF operation to be taken into account when estimating the agricultural and forestry sales Further reference is made to Section 125 (1) lit. b BAO as amended before 1.1.2020.

Rz 2907 reads:

Insofar as the individual sales tax regulations refer to the entrepreneur, the company, the total turnover, etc., it must be taken into account that the agricultural or forestry business, like every other business of the entrepreneur, only forms part of his uniform company. Accordingly, no sales can be made between the agricultural or forestry business and another business of the entrepreneur , only internal sales for which no invoices entitling to input tax deduction within the meaning of § 11 UStG 1994 can be issued (see VwGH 02.25.2015, 2010 / 13/0189). When determining the total sales or the sales of a calendar year, the sales to be taxed according to average rates – which may have to be estimated – must also be included. In the case of an estimate, these sales can be set at 150% of the value of the agricultural and forestry operation ( within the meaning of Section 125 (1) lit. b BAO as amended before 1.1.2020 ) in its most recently applicable amount . In the case of a partial lump sum according to the LuF Flat Rate Regulation 2015 , Federal Law Gazette II No. 125/2013 as amended (until December 31, 2014 : LuF Flat Rate Regulation 2011, Federal Law Gazette II No. 471/2010 as amended), the actual operating income recorded (excluding sales tax) must be used as the basis for the estimate (e.g. Weinbuschenschank or forestry, if the forestry unit value is more than 15,000 [before 1.1.2020: 11,000 ] euros amounts to). The remaining agricultural and forestry sales can be set at 150% of the – correspondingly reduced – unit value.

Example:

An income tax purposes teilpauschalierter farmer (Unit Value: 2 3 0.000 Euro, of which the forestry 1 6 2 000 euros) in 20 20 16 proceeds from timber sales managers in the amount of 16,950 Euros and from the rental of condominiums totaling 11,000 Euros (each including VAT).

For the purpose of determining total sales, the agricultural and forestry sales can be estimated as follows:

150% of the EW of 14 8 .000 €	2112.000 €
[= estimated agricultural turnover (net)]
Recorded sales from timber sales	15.000 €
(13% VAT excluded)
(Partial) estimated total agricultural and forestry sales	3627.000 €
Sales from rental (excluding VAT)	10.000 €
Relevant sales for the year 20 20 16	4637.000 €

Since the small business limit according to § 6 Abs. 1 Z 27 UStG 1994 is exceeded in total, the rental sales are taxable. The timber sales are taxed according to § 22 UStG 1994 .

Rz 2909 will be adapted to the change in the Horse Flat Rate Ordinance , Federal Law Gazette II No. 48/2014, which took effect from April 1 , 2020, by the Regulation, Federal Law Gazette II No. 247/2020 (increase of the monthly flat rate per horse from 24 euros to now 27 Euro).

Rz 2909 reads:

[…]

If there are changes in use as a result (e.g. an asset that has been partially acquired with input tax deduction flows exclusively into flat-rate sales), an input tax adjustment must be made. In the case of a lump-sum assertion of the input tax deduction in connection with sales from the keeping of pension horses for non-agricultural purposes according to the PferdPauschV , Federal Law Gazette II No. 48/2014 as amended, in addition to the lump sum of 27 [until 31.3.2020 : 24 ] with regard to the turnover-related input tax allocation,Euro per horse and month as well as the additional deductible input taxes according to § 2 Paragraph 2 of the Regulation, no further input taxes are claimed, because in the flat rate – calculated on an imputed basis – all input taxes, including those in the context of agricultural and forestry production (e.g. from hay or straw) have been taken into account. The same applies to the use of the 6 percent flat rate for input taxes in connection with the “commercial” processing of own or purchased primary products (see margin no. 2894).

22.6. Standard taxation option

With regard to the effect of the tax rate changes that took place from January 1, 2016, the example in margin no. 2919 is updated and changed.

2919 reads:

Has a flat-rate farmer and forestry owner issued invoices with a tax ID resulting from the application of the average rate in accordance with Section 22 (1) UStG 1994 , and will later switch to regular taxation with effect for these pre-notification periods in accordance with Section 22 (6) UStG 1994 , the entrepreneur has to avoid the legal consequences of § 11 Abs. 12 UStG 1994Make invoice corrections or arrange for credit notes to be corrected. A collective correction of all invoices or credit memos issued to a service recipient is permitted if the respective correction amount for each invoice or credit memo issued can be taken from the collective receipt (= exact allocation to the respective invoice or credit memo to be corrected).

If the invoice is not corrected, the entrepreneur must declare or pay the excess tax amount as a tax liability on the basis of the invoice no later than the last advance notification of the assessment period for which the standard taxation was transferred. Regarding the input tax deduction for the recipient of the service, see margin no. 1734, margin no. 1825 and margin no. 1826.

Example:

A flat-rate farmer hires a grocer cattle dealers in the appointment period from July 2021 2006 a bill for a vegetable sale Viehverkau f in the amount of 1,100 Euros plus 143 132 EUR VAT (tax rate 1 3 2 %) from. In December 2021 06 the entrepreneur submits the option declaration for 2021 06 in accordance with Section 22 Paragraph 6 UStG 1994 .

The entrepreneur has to correct the invoice to the grocer and cattle dealer with regard to the tax amount and the tax rate as follows:

Fee 1,100 euros plus 110 euros VAT (tax rate 10%). The grocer and cattle dealer must correct the input tax deduction accordingly.

If the farmer fails to correct the invoice, he must declare a tax liability in the pre-notification period for December 20 21 06 based on the invoice in accordance with § 11 Paragraph 12 UStG 1994 in the amount of 33 22 euros. Under the conditions of margin no. 1825, there will be no change in the amount of the original input tax deduction of the grocer, cattle dealer .

If the grocer had issued a credit to the farmer, the cattle dealer , it would have to be corrected. If the correction is not made, the farmer is liable for tax in accordance with Section 11 (12) UStG 1994 . However, the grocer and cattle dealer would only be entitled to an input tax deduction of 110 euros (see margin no. 1826).

 

23. Taxation of travel services ( § 23 UStG 1994 )

The heading “23.1. Requirements” is preceded by the passage “Legal situation from 1.1.2022”.

Legal situation from January 1st, 2022

23.1. requirements

The previous statements on § 23 UStG 1994 in implementation of the judgment of the ECJ of January 27, 2021, Case C-787/19 , Commission / Austria, no longer correspond to the legal situation applicable from January 1, 2022 (see Tax Amendment Act 2015, Federal Law Gazette I No. 163/2015 , Annual Tax Act 2018, Federal Law Gazette I No. 62/2018 and Federal Law Gazette I No. 112/2021 ) and must therefore be changed. In margin no. 2941 the word sequence “to non-entrepreneurs” is to be deleted and in margin no. 2942 the last bullet point.

2941 reads:

Travel services in the form of procurement services to non-entrepreneurs are subject to the special provisions of § 23 UStG 1994 .

2942 reads:

On the other hand, the general provisions of the Value Added Tax Act apply to tax:

Travel services of an entrepreneur in the form of

• Own contributions to entrepreneurs and non-entrepreneurs,
• Brokerage services for entrepreneurs and non-entrepreneurs . ,
• Procurement services to entrepreneurs.

In margin no. 2944 there is an adjustment to the Package Travel Ordinance, Federal Law Gazette II No. 260/2018.

2944 reads:

The legal provision of § 23 Abs. 1 UStG 1994 is of importance for procurers, providers of travel services and package tours to non- entrepreneurs . These are in § 2. 8 and para. 9 the travel agency fuse Regulation Packages Regulation definedthan the pre-determined combination of at least two services – transportation, accommodation, other tourist services – which are sold or offered for sale at a total price if this service lasts longer than 24 hours and includes an overnight stay (ordinance of the BMwA on the implementation of the Art. 7 of the Council Directive of June 13, 1990 on package tours (90/314 / EEC) in Austrian law (Travel Agency Security Ordinance – RSV), Federal Law Gazette II No. 316/1999). ( Ordinance of the Federal Minister for Digitization and Business Location on package tours and related travel services (Package Travel Ordinance – PRV), Federal Law Gazette II No. 260/2018).

Rz 2945 will be reformulated taking into account the clarifications resulting from the judgments of the ECJ of December 9, 2010, case C-31/10 , Minerva Kulturreisen, and December 19, 2018, case C-552/17 , Alpenchalets Resorts.

2945 reads:

In order to provide a travel service within the meaning of Section 23 (1) UStG 1994, however, it is not necessary for the entrepreneur to provide a bundle of individual services. Such taxation is also to be carried out if the entrepreneur only provides a single service, e.g. renting holiday apartments without travel and meals (ECJ November 12, 1992, case C-163/91, ” Ginkel “).

For a travel service to be available, it is fundamentally necessary for the entrepreneur to provide a bundle of individual services that contain at least one transport or accommodation service. A single service is only sufficient for the application of Section 23 (1) UStG 1994 if it is an accommodation service provided by a third party and the relevant service content is the implementation (event) of a trip. According to the case law of the ECJ, this is the case in those cases in which the individual service is supplemented by additional service elements usually provided by travel companies, such as consulting services or the offer of various forms of travel (see ECJ November 12, 1992, case C-163 / 91 , Ginkel, ECJ December 19, 2018, case C-552/17 , Alpenchalets Resorts GmbH and ECJ December 9, 2010, case C-31/10 , Minerva Kulturreisen ).

23.1.1. Travel services

In margin no. 2947, the distinction between entrepreneurs and non-entrepreneurs for service recipients, which no longer corresponds to the current legal situation from 01/01/2022 due to the judgment of the ECJ of January 27, 2021, case C-787/19 , Commission / Austria, is deleted. In addition, a statement is made about admission entitlements to trade fairs and congresses and the accommodation, food and transport provided as ancillary services.

2947 reads:

The following are to be regarded as travel services in particular:

• Accommodation (in hotels, guest houses, holiday homes), rental of accommodation,
• Transport of travelers (to and from the individual travel destinations, transfers, round trips, city tours, excursions) with all types of transport,
• Catering,
• Ancillary services (travel companion, sightseeing, guided tours, sightseeing tours, sporting events, language courses, etc.).

An entrepreneur can provide the recipient of the service (entrepreneur or non-entrepreneur) with his own contribution, mediation or procurement.

Section 23 UStG 1994 does not apply to the granting of entry authorizations for trade fairs and congresses and related transport, catering and accommodation services that are offered by the organizer as a uniform service, since in this case the relevant service content is not the implementation of a trip concerns (see ECJ December 9, 2010, case C-31/10 , Minerva Kulturreisen , margin no. 15).

23.1.1.1. Personal contribution

In margin nos. 2948 and 2949, clarifications are made regarding personal contributions, including the case law of the European Court of Justice.

2948 reads:

The entrepreneur acts in his own name and for his own account. It is therefore a matter of own achievements, ie. about services that are not obtained from third parties, but rather provided by the travel agency itself (see ECJ December 19, 2018, case C-552/17 , Alpenchalets Resorts GmbH, marginal number 23).

Each individual service is subject to sales tax (e.g. bus company provides a transport service, hotelier rents a hotel room and provides food for the guests). The assessment basis (the bus price, the room price, the sales of food and beverages) is to be determined and taxed in accordance with the general provisions of the UStG 1994. An input tax deduction is due.

2949 reads:

In the case of trips that also extend abroad, the individual services provided in Germany are subject to taxation.

Own work is also given if the entrepreneur rents a bus without a driver or a manned vehicle as part of a provision contract (see margin no. 1308 ). The same applies if complete accommodation, such as a hotel, is rented by a travel company in order to provide accommodation and meals to customers with its own staff and resources (see margin no. 1187).

23.1.1.2. Brokerage service

2951 and 2952 are supplemented with examples. There is also a reference adjustment.

2951 reads:

The entrepreneur acts in the name of and for the account of a third party. The intermediary entrepreneur (travel agent) establishes a direct contractual relationship between the customer (traveler) and the provider of a travel service (e.g. tour operator, transport company, hotelier).

The basis of assessment is the agency fee. Section 23 UStG 1994 does not apply.

Example:

An Austrian travel agency A arranges a cultural trip to Italy for an Austrian tour operator X for a customer. A charges the tour operator X a commission and the customer a booking fee.

The brokerage service is taxable in Austria in accordance with Section 3a (6) UStG 1994 (see also margin no. 2988). The agency commission and the booking fee are subject to the normal tax rate of 20% as remuneration for the agency (for billing by agents, see margin nos. 1530 to 1532).

2952 reads:

Scheduled flights, rail travel and travel insurance (with the exception of travel cancellation insurance) can be arranged for both entrepreneurs and non-entrepreneurs. Individual travel services can also be arranged as part of a trip, in particular scheduled flights and scheduled train journeys, and individual travel services such as accommodation, guided tours, etc. can be arranged. In these cases, it must be clear from the billing slip whether and which service is being brokered or procured (margin nos. 1530 to 1532 and margin nos . 2957 ).

Example 1:

A German customer books a hotel room in Vienna with an Austrian travel agency and also requests a rental car for the one-week stay. In addition to the price for the hotel room, the travel agency charges the customer a surcharge for brokering activities in connection with the rental car.

The brokerage service, in which the travel agency acts in the name and for the account of the customer, is taxable in Austria in accordance with Section 3a Paragraph 8 UStG 1994 in conjunction with Section 3a Paragraph 12 UStG 1994 . The agency commission in the form of the surcharge is subject to the normal tax rate of 20% as remuneration for the agency (for billing by agents, see margin nos. 1530 to 1532).

The fee for short-term rental of the means of transport is charged directly to the customer by the car rental company and is also subject to the normal tax rate of 20% in Austria in accordance with Section 3a (12) UStG 1994 .

The procurement of the hotel is taxable according to § 23 UStG 1994 .

Example 2 :

A customer books a flight to Rome at a travel agency for 400 euros and a hotel room in Rome for 258 euros. The entrepreneur arranges the flight and arranges the hotel. He issues a receipt each for arranging the flight and arranging the hotel. He receives a commission of 32 euros for the flight and 210 euros for the hotel room.

The agency commission of 32 euros is exempt from sales tax in accordance with Section 6 (1) (5) lit. a UStG 1994 . The procurement of the hotel is taxable according to § 23 UStG 1994 .

The taxable assessment base is 40 euros (258 minus 210 = 48: 1.2 = 40).

23.1.1.3. Procurement service

The distinction between entrepreneurs and non-entrepreneurs at the service recipient no longer corresponds to the legal situation applicable from 1.1.2022. The breakdown in subsection 23.1.1.3.1. and subsection 23.1.1.3.2. is therefore no longer required and is not applicable. 2953 is deleted. In margin no. 2954, the general statements on procurement services and the adapted examples from margin no. 2953 are adopted.

23.1.1.3.1. Procurement services for entrepreneurs

2953 reads:

The entrepreneur acts in his own name but for the account of a third party. Section 23 UStG 1994 does not apply to travel care services for entrepreneurs. Each individual service is subject to sales tax (e.g. providing a transport service with a bus, a hotel room; the basis of assessment is the fee agreed with the recipient of the service for the bus, the hotel room). If an entrepreneur provides another service, the legal provisions applicable to the service provided are to be applied accordingly to the procurement service (Section 3a (4) UStG 1994).

Example 1:

On June 1, 2016, a travel company organized a hotel stay in Innsbruck for an entrepreneur at a price of 1,130 euros (including VAT). The travel company bought the hotel stay for 1,017 euros (900 euros net).

The hotel stay in Innsbruck is taxable according to § 3a Abs. 9 UStG 1994 (until December 31, 2009: § 3a Abs. 6 UStG 1994) and according to § 10 Abs. 3 Z 3 lit. a UStG 1994 with the reduced tax rate tax of 13%. The hotelier has to tax 900 euros and the travel company 1,000 euros at 13%. The travel company can deduct 117 euros as input tax.

Example 2:

A travel company arranges a hotel stay in Italy for an entrepreneur at a price of 1,130 euros. The travel company bought the hotel stay for 1,017 euros. The turnover in Germany is not taxable according to § 3a Abs. 9 UStG 1994 (until December 31, 2009: § 3a Abs. 6 UStG 1994).

Example 3:

A travel company arranges a hotel stay in the USA for a company under the above conditions. Solution as in example 2.

Example 4:

Travel company A arranges for travel company B an “all-inclusive” stay (hotel stay with full board) in Germany. For the provision of hotel accommodation, the place of performance is determined in accordance with Section 3a Paragraph 9 UStG 1994 (until December 31, 2009: Section 3a Paragraph 6 UStG 1994). The provision of hotel accommodation from A to B is not taxable in Austria.

• The serving of food and beverages is – with the exception of the serving of a local breakfast – not an ancillary service to the hotel stay (accommodation). The restoration sales are therefore to be regarded as (independent) other services (see margin no. 345).
• The place of performance for restoration sales is determined according to § 3a Abs. 11 lit.d UStG 1994 according to the place of activity (until 31.12.2009: § 3a Abs. 12 UStG 1994 according to the place of business). The place of performance for the restaurant sales of the German hotelier to the A is therefore Germany. With regard to the German sales tax invoiced to him for the restaurant sales, A is entitled to input tax deduction in Germany.
• The place of performance for the provision of restoration sales is also determined in accordance with Section 3a Paragraph 4 in conjunction with Paragraph 11 lit.d UStG 1994 according to the place of activity principle. The performance of A to B is not taxable in Austria (until December 31, 2009: The place of performance for the provision of restoration sales is determined according to the company location principle. A performance of A to B is taxable and subject to tax in Austria).

Example 5:

The Austrian travel company A arranges for the travel company B an “all-inclusive” stay (hotel stay with full board) in Italy. Solution as in example 4.

In contrast to example 4, A is not granted any input tax deduction in relation to the Italian sales tax charged to him for the restaurant sales. In Italy the “travel agency regulation” (in Austria: § 23 UStG 1994) is also used for procurement services for entrepreneurs.

In order to avoid a double burden of sales tax (legal situation until December 31, 2009), there are no concerns about taxing the procurement services in Germany if there is no entitlement to input tax deduction in the other EU member state.

Marginal number 2953: currently free.

23.1.1.3.2. Provision of travel services for non-entrepreneurs

2954 reads:

The entrepreneur acts in his own name but for the account of a third party.

Each individual service is subject to sales tax (e.g. providing a transport service with a bus, a hotel room; the basis of assessment is the fee agreed with the recipient of the service for the bus, the hotel room).

The taxation according to § 23 Abs. 1 UStG 1994 applies.

Example 6:

Examples as in margin no. 2953, but the recipient of the service is a non-entrepreneur.

Section 23 UStG 1994 applies to travel provision services for non-entrepreneurs (see Section 23 Paragraph 1 UStG 1994). There is differential taxation.

Example e 1 and 2 :

The difference is 113 euros each (1,130 euros less 1,017 euros)

Tax base 94.17 euros (113 euros / 1.20), VAT 18.83 euros.

On June 1, 2022, a travel company arranges a hotel stay in Innsbruck for its customers at a price of 1,130 euros (including VAT). The travel company bought the hotel stay for 1,017 euros (900 euros net).

Section 23 UStG 1994 applies to travel care services (see Section 23 Paragraph 1 UStG 1994 ). Margin taxation is applied, whereby the VAT calculated from the difference of 113 euros (1,130 euros less 1,017 euros) based on the assessment base (113 euros / 1,200 = 94.17 euros) results in 18.83 euros.

Example 2:

A travel company sells a hotel stay in Italy to its customers for 1,130 euros. The travel company bought the hotel stay for 1,017 euros.

Solution as in example 1

Example 3:

A travel company arranges a hotel stay in the USA under the above conditions.

The assessment base of 113 euros is tax-free according to Section 23 (5) UStG 1994 .

Example 4:

Travel company A arranges for travel company B an “all-inclusive” stay (hotel stay with full board) in Germany.

Section 23 UStG 1994 applies to travel care services for companies (see Section 23 Paragraph 1 UStG 1994 ). The place of performance is determined in accordance with Section 23 Paragraph 3 UStG 1994 .

Example 5:

The Austrian travel company A arranges a hotel stay in Italy for the lawyer B for his business trip.

In examples 4 and 5, the assessment basis would have to be determined in the same way as in examples 1 and 2.

23.1.1.4. Differentiation between brokerage and procurement services

A reference is corrected in margin no. 2955.

2955 reads:

In order to act in the name of another person and for the account of a third party, the internal relationship (legal relationship with the client) and the external relationship (appearance towards the recipient of the service) must be designed accordingly. The legal relationships with the client alone are not sufficient.

Decisive for whether an entrepreneur acts in the name of a third party or in his own name is his behavior towards the recipient of the service (VwGH 15.1.1990, 87/15/0157 ; VwGH 27.4.1994, 94/13/0023 ) (for brokerage see also margin no 656 639s ).

In the heading of Section 23.1.1.5, the phrase “to non-entrepreneurs” is omitted and the reference in margin no. 2958 is corrected in the example.

23.1.1.5. Mixed travel services to non-entrepreneurs

2958 reads:

Mixed travel services exist if the entrepreneur makes his own services as well as making use of advance travel services. The general provisions of the Value Added Tax Act apply to personal work. Section 23 UStG 1994 is only applicable to the extent that the entrepreneur makes use of advance travel services. The uniform travel price must be divided between internal and external services. For purposes of division, the company’s own services can be stated with the costs incurred for them, including sales tax, and external services with the service fee incurred for these services, including sales tax.

Example:

As part of a package tour, the entrepreneur transports the travelers in his own bus. Accommodation and meals are provided in a foreign hotel.

In this case, the transport service is subject to taxation in accordance with the general regulations; the accommodation and meals are subject to taxation according to § 23 UStG 1994 . To determine the assessment basis, see margin nos. 3060 3055 bis and 3061.

23.1.2. Beneficiary

In margin no. 2959, in line with the case law of the European Court of Justice, in particular the judgment of the European Court of Justice September 26, 2013, case C-189/11 , Commission / Spain, the term traveler is replaced by that of the customer.

2959 reads:

The recipient of the service is the purchaser of the travel service. The service recipient and the traveling customer do not need to be identical, e.g. a father gives his daughter a package holiday.

The distinction between entrepreneurs and non-entrepreneurs for the recipient of the travel service no longer corresponds to the legal situation applicable from 1.1.2022. Rz 2960, Rz 2961 and Rz 2962 and their headings are deleted.

2960 reads:

In principle, when providing personal or agency services, it is irrelevant who the recipient of the service is. Only for those travel services that are provided, different tax consequences are linked to whether the service recipient

• Entrepreneur or
• Is a non-entrepreneur (end consumer).

23.1.2.1. Service to entrepreneurs

Rz 2961 reads:

If a service recipient acquires a travel service for the purposes of his company (he requests an invoice, he can prove his entrepreneurship with the VAT ID), this is not an application of § 23 UStG 1994, but the general provisions of the UStG 1994 apply. If it later turns out that the information was objectively incorrect in the individual case (e.g. a business trip is classified as non-entrepreneurial in a tax audit), the travel company does not need to make a correction.

23.1.2.2. Performance to non-entrepreneurs

2962 reads:

The prerequisite for the applicability of § 23 UStG 1994 is, among other things, that the travel service is not intended for the company of the service recipient.

A travel service will always be intended for a non-entrepreneur and not for the company of a service recipient if the service recipient does not expressly inform that he is purchasing the trip for the purposes of his company and does not express this by requesting an invoice with a tax ID.

Sections 23.1.2.1. and 23.1.2.2 .: not applicable

Marginal numbers 2960 to 2962: currently free .

23.1.2.3. special cases

23.1.2.3.1. Flat-rate farmers and foresters

The statements on flat-rate farmers and foresters as entrepreneurial service recipients are no longer relevant under VAT law for the legal situation that will apply from 1.1.2022. 2963 and 2964 are deleted.

2963 reads:

Farmers and foresters who pay tax on their sales in accordance with Section 22 UStG 1994 are entrepreneurs. If travel services are provided to the company (e.g. business trips), Section 23 UStG 1994 does not apply. The services are taxable according to the general rules of the Value Added Tax Act.

Rz 2964 reads:

Travel services that are not provided for the company, but rather for the farmer and forest manager, are taxable according to § 23 UStG 1994. A travel service will generally be intended for the farmer and forester and not for his company, unless he expressly states that he is purchasing the trip for the purposes of his company.

Marginal numbers 2963 to 2964: currently free.

In margin nos. 2966 and 2967, there is an adjustment to the legal situation for the taxation of travel services in accordance with Section 23 UStG 1994, which will apply from January 1, 2022 .

23.1.2.3.2. Incentive trips

2966 reads:

An incentive trip granted by the employer is usually promised and granted as a reward for special work. The employee performs the special service in order to be able to take part in the trip. In such cases, there is an exchange of services. There is no taxable difference and input taxes from advance travel expenses are not deductible (see margin no. 3091).

Example:

An entrepreneur buys a multi-day stay at an amusement park in France from a travel agency. The travel price also includes travel by bus and overnight stays. The trip serves as a reward for special work performed by an employee of the company.

The taxation of the individual travel services takes place both at the travel agency according to the general regulations. The and the performance of the entrepreneur to his employee is subject to taxation according to § 23 UStG 1994 .

However, there is no margin if one assumes that the assessment basis for the benefit in kind and the amount of the entrepreneur’s expenses for the trip are the same. The material effect is that the VAT invoiced by the travel agency for the domestic bus portion , which is included in the travel price and not shown in the invoice, is not deductible for the entrepreneur purchasing the trip.

23.1.2.3.3. company excursion

2967 reads:

The company outing basically falls within the scope of § 23 UStG 1994 . Since here, too, there is a travel service from an entrepreneur to a non-entrepreneur (employee), but there is usually no margin, the consequences are the same as in the example in margin no. 2966. If the company outing is for a fee, the resulting margin is taxable. With regard to input tax deduction, see margin no.3091.

However, if travel is in the company’s interest, Section 23 UStG 1994 does not apply. This can be assumed for a company outing if the expenses (advance travel expenses) for a company outing per year and per employee do not exceed 100 euros (until December 31, 2001 1,350 schillings).

Marginal numbers 2968 to 2980: currently free .

23.2. Travel service is another service

2981 is supplemented by the reference to the judgment of the ECJ of October 25, 2012, case C-557/11 , Kozak.

2981 reads:

The travel service within the meaning of § 23 UStG 1994 is always to be regarded as other service. Several travel services (e.g. transport, accommodation, meals) are always considered to be a uniform other service (see ECJ 25.10.2012, case C-557/11 , Kozak, Rn 23 f) .

Marginal numbers 2982 to 2985: currently free .

In margin nos. 2987 and 2988, the brackets referring to the old legal position are deleted and the citation corrected.

23.3.1. Place of travel services for personal services

2987 reads:

For personal work, the location is based on the general regulations, e.g.

• Passenger transport services Section 3a (10) UStG 1994 (until December 31, 2009: Section 3a (7) UStG 1994) ,
• Accommodation § 3a Paragraph 9 lit.b UStG 1994 (until December 31, 2009: § 3a Paragraph 6 UStG 1994) ,
• Catering according to Section 3a Paragraph 11 lit.d UStG 1994 (until December 31, 2009: Section 3a Paragraph 12 UStG 1994) ,
• Supervision by our own – employed – tour guides § 3a Paragraph 6 or Paragraph 7 UStG 1994 (until December 31, 2009: § 3a Paragraph 12 UStG 1994) .

23.3.2. Place of travel services when arranging travel services

2988 reads:

If a travel service is brokered, the location of the brokerage service depends on whether the recipient of the service is an entrepreneur within the meaning of Section 3a Paragraph 5 Items 1 and 2 UStG 1994 or a non- entrepreneur within the meaning of Section 3a Paragraph 5 Item 3 UStG 1994 . In the first case, the recipient location is decisive in accordance with Section 3a Paragraph 6 UStG 1994 , in the second case the place of performance is determined according to Section 3a Paragraph 8 UStG 1994 according to the location of the mediated service. (Until December 31, 2009: Regardless of the person of the service recipient, the location of the brokerage service is based on the location of the brokered service in accordance with Section 3a (4) UStG 1994.)

23.3.3. Place of travel services in the case of travel services

The distinction between entrepreneurs and non-entrepreneurs for the recipient of the travel service no longer corresponds to the legal situation for the taxation of travel services in accordance with Section 23 UStG 1994, which will apply from January 1, 2022 . 2989 is deleted and 2990 is adapted in this regard.

2989 reads:

Procurement for entrepreneurs:

In the event that travel services are provided by an entrepreneur for another entrepreneur, the place of performance is based on the location of the service provided (Section 3a (4) UStG 1994; in the case of accommodation, e.g. the location of the property).

Margin number 2989: currently free .

2990 reads:

Procurement for non-entrepreneurs:

If an entrepreneur procures travel services for a non- entrepreneur (end consumer) , the travel service must be taxed where the travel company operates his company (or his permanent establishment) (Section 23 (3) in conjunction with Section 3a (7) UStG 1994 ; until 31.12 .2009: Section 23 Paragraph 3 in conjunction with Section 3a Paragraph 12 UStG 1994 ).

Marginal numbers 2991 to 2995: currently free .

23.4. Advance travel expenses

In margin no. 2996, in line with the ECJ case law, in particular the judgment of September 26, 2013, case C-189/11 , Commission / Spain, the term traveler is replaced by that of the customer.

2996 reads:

Advance travel services are all services that are provided by a third party and directly benefit the traveler customer .

23.4.1. The following are to be regarded as advance travel services in particular:

2997 is supplemented by the treatment of services by target area agencies and a clarification on chain transactions including an example.

2997 reads:

• Transport to the individual travel destinations by third-party carriers,
• Accommodation in foreign hotels,
• Catering,
• Organization of events as part of a trip (e.g. visits to the opera, festival performances, car races);
• Support from independent tour guides,
• Travel cancellation insurance: A travel cancellation insurance included in the travel price is part of the standard travel service, the resulting margin is therefore taxable. If, on the other hand, the insurance fee is invoiced separately in addition to the travel price, this is a service to be assessed in accordance with the general provisions of the UStG 1994, which is not subject to margin tax (possibly tax-free in accordance with Section 6 (1 ) No. 13 UStG 1994 ),
• The services of destination agencies are to be viewed in their entirety as advance travel services if the focus is on looking after the travelers on site (e.g. organizing the transfer, animating the travelers, arranging excursions and sightseeing), whereby the administrative services provided represent dependent ancillary services.

If an entrepreneur acquires a uniform travel service (chain transaction) from another entrepreneur in accordance with Section 23 (1) UStG 1994, advance travel services are the individual components and not the uniform travel service.

Example:

Tour operator B sells the package tour acquired by tour operator A in its own name to the travel agency of C.

Travel services are the individual components (transport, accommodation and meals for travelers).

23.4.4. No advance travel expenses

In margin no. 3000 the reference to margin no. 2949 on renting accommodation and a clarification on the cancellation of advance travel services is included.

Rz 3000 reads:

No advance travel expenses are:

• Travel prospects,
• Brokerage services,
• Office expenses such as rent, electricity and other office supplies,
• Purchase of equipment (bus),
• Rental of means of transport, complete accommodation (e.g. hotel) without staff (see margin no.2949) , etc.

Insofar as the entrepreneur himself has to cancel advance travel services already ordered (e.g. hotel rooms) for a fee as a result of the customer’s cancellation of a trip, there are no advance travel services in this respect.

23.5.2. Tax exemption for mediation

In margin no. 3017, the solution to the legal situation until December 31, 2009 and the second reference in brackets are deleted.

Rz 3017 reads:

The general provisions of the UStG 1994 apply. According to § 6 Abs. 1 Z 5 lit. a UStG 1994 the brokerage of the sales falling under Z 1 to 4, thus also the brokerage of the transport of people by ships and aircraft, is exempt from sales tax.

Example:

A travel agency arranges a flight from Vienna to London for an Austrian airline.

Solution (until December 31, 2009):

The brokerage commission on the domestic flight share is VAT taxable but tax-free in accordance with Section 6 (1) (3) (d) in connection with Section 6 (1) (5) (a) of the UStG 1994.

Solution (from 1.1.2010) :

The agency commission is VAT taxable at the recipient location (Austria) in accordance with Section 3a (6) of the UStG 1994 , but is tax-free in accordance with Section 6 (1) ( 3) (d) of the UStG 1994 in connection with Section 6 (1) (5) (a) of the UStG 1994 .

23.5.3. Tax exemption for errands

The distinction between entrepreneurs and non-entrepreneurs for the recipient of the travel service no longer corresponds to the legal situation for the taxation of travel services in accordance with Section 23 UStG 1994, which will apply from January 1, 2022 . The division into subsections 23.5.3.1. and 23.5.3.2. is therefore no longer required and is not applicable. 3019 is deleted.

23.5.3.1. Procurement services to entrepreneurs

Rz 3019 reads:

If services are provided by companies for other companies, margin no.3016 applies accordingly.

23.5.3.2. Procurement services to non-entrepreneurs

Sections 23.5.3.1. and 23.5.3.2 .: not applicable

Margin number 3019: currently free .

A reference is corrected in margin no. 3021.

Rz 3021 reads:

If an entrepreneur makes use of advance travel services in the third country area as well as in a member state of the EU (including Germany) during a trip, the margin must be divided into a tax-free and taxable part in the ratio of the advance travel services to the third country area or to the member states (see margin no 3022 to margin no.30 27 40 ).

23.5.3.3.2. Simplification of passenger transport by air

Example 2 is updated in margin no. 3026.

Rz 3026 reads:

If the tour operator makes use of the simplification rule, he must apply this rule to all trips organized by him in an assessment period. The change from the division according to the route shares to the simplification rule can only be made at the beginning of an assessment period.

Example 1:

An entrepreneur offers a flight from Schwechat to Bangkok for a flat rate.

The destination is in the third country area and the overall transport service is deemed to have been provided in the third country area. If all other travel services are also made in the third country, the travel service of the entrepreneur is entirely tax-free.

Example 2:

The entrepreneur offers a flight from Schwechat to Berlin- Marseille . The flight route leads over the Czech Republic to Switzerland .

The destination of the trip is in the community area and the transport service is deemed to have been provided in the community area. If the other travel services are also provided in the community area, the travel services of the entrepreneur are fully taxable.

In section 23.6. the reference is corrected:

23.6. Conditions for tax exemption

With regard to the accounting records, see margin nos. 2581 to 258 5 8 .

23.7. Assessment basis

23.7.1. Assessment basis for procurement services

Since the judgment of the European Court of Justice of January 27, 2021, Case C-787/19 , Commission / Austria, a blanket determination of the margin is no longer possible and no provision is made for this from January 1, 2022, the following margin nos of this section are adapted , the relevant statements in margin no. 3054 deleted and statements and examples for determining individual margins added.

Rz 3051 reads:

The assessment basis is the difference between the amount that the recipient of the service spends and the amount that the entrepreneur spends on advance travel services, minus the 20% sales tax included in the difference. Basically, the focus here is on the individual travel service (see ECJ January 27, 2021, case C-787/19 , Commission / Austria, and ECJ February 8, 2018, case C-380/16 , Commission / Germany ).

Example 1 :

Amount spent by the beneficiary	1.000 Euro
minus advance travel expenses	– 880 Euro
difference	120 Euro
minus included VAT of 20%	– 20 Euro
Assessment basis	100 Euro

Example 2:

A travel agency A based in Vienna sells an Austria bus trip in its own name, with 50 people traveling. The price is 750 euros per person.

The following costs are incurred for advance travel services including sales tax:

for the transport service by a third-party bus operator	14.500 Euro
for accommodation in hotels and pensions	16.000 Euro

The margin for the service of the travel agency is to be determined for each individual travel participant, unless individual service recipients appear in their own name for other travel participants:

Travel price per participant		750 Euro
Travel services:
for the bus ride	14,500 Euros / 50 = 290 Euros
for lodging	16,000 Euros / 50 = 320 Euros	610 Euro
Marge		140 Euro
VAT of 20% included		23,33 Euro
Assessment basis		116,67 Euro

If the amount of the assessment base for a turnover or travel price received in the pre-registration period cannot yet be finally calculated, e.g. due to guarantee contracts for advance travel services or time-dependent and turnover-dependent bonuses, it must be estimated on the basis of the calculation of the individual trip (see ECJ December 19, 2018 , Rs C-422/17 , Skarpa Travel ). As soon as the information required for the calculation is available to the entrepreneur, the margin calculation must be corrected in the relevant pre-notification period. If the required information is only available at the end of the assessment period, the correction can also be made as part of the annual sales tax return.

For reasons of simplicity, the entrepreneur can treat all overnight stays or transport allotments purchased from third parties as advance travel services, even if these allotments are not fully used.

If an entrepreneur makes use of this, he must apply this rule to all trips organized by him in an assessment period. If there are negative individual margins, these cannot be offset against positive individual margins. If an entrepreneur does not make use of the simplification rule, the contingents not called up are not advance travel services. In this respect, he is entitled to the input tax deduction under the other requirements of § 12 UStG 1994 .

Example 3:

Tour operator A, based in Salzburg, has contractually agreed with an Italian hotel to occupy 100 rooms for one week at a single nightly price of 45 euros. The intended fee of EUR 31,500 must be paid by A even if he cannot occupy all of the booked rooms.

The calculation is made with a 100 percent room occupancy, but ultimately only 70% of this is achieved. A must initially take into account EUR 315 per trip, if applicable per travel participant, as advance travel payment.

As soon as A has all the information about the actual occupancy of the booked rooms, the associated margin calculations must be corrected in the relevant pre-registration period.

The VAT adjustment can be made in one amount.

The calculation looks like this:

Planned accommodation services per trip (45 euros x 7 days)	315 Euro
Actual accommodation services per trip (31,500 euros / 70)	450 Euro
Increase in advance travel payment = reduction in the margin per trip	135 Euro
Sum of the margin reduction (135 euros x 70 or 31,500 euros x 30%)	9.450 Euro
./. VAT included therein (tax rate 20%)	1.575 Euro
Reduction of the assessment base	7.875 Euro

If there is a minus in the margin calculation, the assessment basis for the individual travel service in question is zero euros.

Example 4:

For a trip to Vienna, a travel company also books an excursion to the Wachau for 20 participants at 100 euros per person, resulting in costs of 2000 euros. However, only 15 participants register, who are sold a ticket for 125 euros. The expenses for the excursion are offset by a turnover of 1,875 euros, which results in a negative margin for the travel company of 125 euros.

The resulting sales tax of -20.83 euros cannot be claimed in the relevant pre-registration period; instead, the entrepreneur must note the turnover with zero euros.

Rz 3054 reads:

The assessment basis for the pre-registration and assessment period can be determined as follows:

Sum of the travel prices including sales tax

– Travel services including sales tax

————————————————————————

= Difference

– tax-free sales

————————————————————————

= Taxable gross assessment base: 1.20

= Taxable assessment base

Margin number 3054: currently free.

23.7.2. Determination of mixed travel services

In margin no. 3057, statements on the market value method for determining personal performance from the judgment of the ECJ of October 6, 2005, Rs C-291/03 , My Travel are adopted.

Rz 3057 reads:

The division can also be based on the ratio of the market price of the own contribution, provided this value can be determined , to the market price of the travel services taxable according to § 23 UStG 1994 (ECJ October 22, 1998, Rs C-308/96 and Rs C-94/97 , TP Madgett and RM Baldwin ( The Howden Court Hotel ) , and ECJ 6.10.2005, Rs C-291/03 , My Travel ).

Example:

As above.

Own contribution by bus 2,280 euros; Procurement service 9,120 euros.

On the basis of the EU law requirements confirmed by the judgment of the ECJ of January 27, 2021, Case C-787/19 , Commission / Austria, Section 23.7.3. and margin nos. 3058 and 3059 are no longer retained and will be deleted.

23.7.3. estimate

Rz 3058 reads:

To simplify the determination of the taxable assessment base, in addition to a self-calculation and optionally, without further evidence that the assessment base cannot be precisely calculated or determined, the entire taxable assessment base (excluding sales tax) for a pre-registration and subsequent assessment period with 10% of the The amounts expended by the service recipients (including sales tax) for travel services to the countries of the EU (including Germany) are estimated. The taxable assessment base estimated in this way for the travel services provided in a pre-registration and assessment period includes the taxable assessment base for trips to EU countries (including Germany). When traveling to third countries, the Taxed transport services to be assessed as advance travel services in accordance with § 23 UStG 1994. If the tax base is estimated, the proportionate taxable tax base for transport services to third countries is also included.

Rz 3059 reads:

The estimate is to be made in the case of target taxation on the basis of the agreed fees and in the case of actual taxation on the basis of the fees received. If the assessment basis is determined in this way by means of an estimate, the target or actual income for trips to EU countries (including Germany) must be recorded separately for sales tax purposes.

Example:

Service revenues including VAT for travel services within the meaning of § 23 UStG 1994 in the countries of the EU (including Germany) 4,000,000 euros and in third country areas 3,000,000 euros. Input tax on advance payments that are not travel expenses, 90,000 euros.

Solution:

Assessment base (10% of 4,000,000 euros)	400.000 Euro
Sales up to 20%	400,000 Euro x 20%	80.000 Euro
minus input tax		– 90.000 Euro
VAT credit		10.000 Euro

Section 23.7.3 .: not applicable

Marginal numbers 3058 and 3059: currently free .

23.7.4. Down payments

In section 23.7.4.1, the heading is changed and the judgment of the ECJ of December 19, 2018, case C-422/17 , Skarpa Travel, is incorporated into margin no.3060 and the statements that are no longer applicable are deleted.

23.7.4.1. General tolerance rule

Rz 3060 reads:

The sales taxation of advance payments in connection with travel services can be omitted if these do not exceed 35% of the taxable service price. If the down payments are more than 35%, the down payments are fully taxable.

Example 1:

Final travel price 490 euros. Deposit 50 euros

Down payment of less than 35% of the final travel price and therefore not taxable.

Example 2:

Weekly flat rate for half board in a hotel 990 euros

Deposit 500 euros. The deposit is more than 35% of the price and is therefore taxable.

If the entrepreneur receives a down payment from the customer before carrying out a sufficiently specified travel service (date and destination of the trip are already fixed), down payment taxation must be carried out in accordance with Section 19 (2) 1 lit. a UStG 1994 (see also ECJ December 19, 2018 , Rs C-422/17 , Skarpa Travel ).

23.8. Input tax deduction

23.8.1. Non-deductible input taxes

In margin no. 3091, the reference in brackets is corrected.

Rz 3091 reads:

In deviation from § 12 UStG 1994 , input tax may not be deducted in connection with advance travel expenses. If an entrepreneur passes on a trip without a surcharge (e.g. company outing), no taxable margin is taxable; input tax deduction from advance travel expenses is not possible (see margin nos. 2967 to 2980 ).

23.8.2. Deductible input tax

Due to the requirements of EU law confirmed by the judgment of the ECJ of January 27, 2021, Case C-787/19 , Commission / Austria, margin no. 3092 is completely deleted.

Rz 3092 reads:

Input taxes in connection with advance travel services are deductible if travel services are not taxed according to § 23 UStG 1994 (e.g. travel services to entrepreneurs).

Margin number 3092: currently free .

23.9. Record keeping

In margin number 3111 there is an adjustment to the provisions of Union law confirmed by the judgment of the ECJ of January 27, 2021, Case C-787/19 , Commission / Austria, according to which travel services to entrepreneurs also fall under the special regulation for travel agencies.

Rz 3111 reads:

Entrepreneurs who do not only carry out travel services within the meaning of § 23 UStG 1994 must record the sales for these travel services separately from the other sales in the records. In addition to sales from other activities, sales from travel services for the company of a service recipient and personal work in connection with travel are also to be added to the other sales.

It is therefore to be separated as follows:

Service fees for travel

– Service fees for trips sold to entrepreneurs

– Service fees for own work

———————————————————————————

= Service fees for travel within the meaning of § 23 UStG 1994

Marginal numbers 3112 to 3250: currently free.

 

25b. Special regulation for import mail order business (IOSS)

25b.1. requirements

Rz 3434 is adapted to the legal changes of § 25b UStG 1994 on the basis of the federal law with which the Income Tax Law 1988 , the Sales Tax Law 1994 and the Alcohol Tax Law are changed, Federal Law Gazette I No. 112/2021 . Goods subject to excise duty are therefore not subject to the special regulation in § 25b UStG 1994 .

Rz 3434 reads:

Entrepreneurs who import mail order sales (see Section 3 (8a) UStG 1994 ) of goods from third countries in the Community can – under certain conditions – decide to be registered in only one Member State and to pay the tax there via Import-One -Stop shop (IOSS) to explain and pay. The sales tax is passed on via the IOSS to the respective member states in which the tax is owed. This affects import mail order sales for which the individual value per shipment does not exceed 150 euros. The special regulation for the IOSS does not apply to goods subject to excise duty.

[…]

25b.5. Use of the IOSS through a representative

The implementation decision 2021/942 of June 10, 2021 is incorporated in margin no. 3438 . This stipulates that Norway is a third country with which the European Union has concluded an agreement on mutual administrative assistance, the scope of which is similar to Directive 2010/24 / EU and Regulation (EU) No. 904/2010 .

Rz 3438 reads:

An entrepreneur can also use the IOSS through a representative, provided that the entrepreneur does not have an active IOSS identification number in another member state. For third-country entrepreneurs who are not established in any member state and who do not operate their company in Norway in a state within the meaning of Section 25b (1) (1) (b) UStG 1994 ( Section 25b (1) (1) (b) UStG 1994 and Art 2021/942 of the European Commission ) , representation is the only way to make use of the IOSS. In this case, all import mail order deliveries must be declared and cleared through the representative in the IOSS.

[…]

26a. Special regulation for the declaration and payment of the tax on import ( § 26a UStG 1994 )

The so-called “super-reduced data set” within the meaning of Art. 143a Delegated Regulation (EU) 2015/2446 , which et al. for the use of the special regulation according to § 26a UStG 1994 is not yet available on July 1, 2021, when this special regulation comes into force. For the period up to the use of the “super-reduced data set”, Annex 1 Title II of the Customs Registration Ordinance 2016 (ZollAnm-V 2016), Federal Law Gazette II No. 110/2016, with the ordinance of the Federal Ministry of Finance of April 20, 2021 , Federal Law Gazette II No. 175/2021, amended and a transitional arrangement included. After that, until the “super-reduced data record” is used in the customs declaration for goods in consignments that are duty-free, a goods number corresponding to the applicable import sales tax rate can be used. For goods in consignments with a material value of up to 150 euros with the import sales tax rate of 20% applicable without exception when applying § 26a UStG 1994 , the goods number is “9990 9000 20”.

Rz 3446 reads:

From July 1, 2021, when the customs deferral of payment (Art. 110 UZK) applies, the special regulation in § 26a UStG 1994 can be used for imports by submitting a customs declaration with a super-reduced data record (see Article 143a Delegate Regulation (EU) 2015/2446 ) or until the use of the customs declaration with super-reduced data record by submitting a standard customs declaration in which the short number “9990 9000 20” and the additional information code “26000” must be specified (see ZollAnm- V 2016 , Federal Law Gazette II No. 110/2016 as amended by Federal Law Gazette II No. 175/2021). This special regulation can only be applied if the individual value of the goods does not exceed 150 euros and the goods cannot be declared via the IOSS ( § 25b UStG 1994 ). If the regulation in § 26 Abs. 3 Z 2 UStG 1994 is applied, the use of the special regulation is excluded.

If the goods are registered with customs using the special regulation in § 26a UStG 1994 , the normal tax rate is mandatory. If the entrepreneur wishes to tax the goods at the reduced tax rate, he must submit a standard customs declaration using the corresponding goods number or – until the customs declaration with super-reduced data record is used – the corresponding short number and the information code for the reduced tax rate .

The collector must take suitable measures to ensure that the correct tax amount is paid (see also Art. 15 UZK ). For example, the person obliged to collect the goods can request the original invoice from the person for whom the goods are intended. In addition, the person obliged to collect must keep records of the imports that are subject to the special regulation. The records must enable verification that the tax has been correctly declared. They are to be kept for seven years from the date of the declaration and, if requested by the authorities, to be transmitted electronically.

Example 1 :

A private person in Austria buys books with a value of 100 euros from a third country entrepreneur who is not in the IOSS. The goods are imported from the third country to Austria, with the shipment being carried out by a universal service operator.

Solution (from July 1st, 2021):

If the universal service operator decides to submit a customs declaration with a super-reduced data record using the deferred payment or, until the use of the customs declaration with a super-reduced data record, to submit a standard customs declaration in which the short number “9990 9000 20” and the additional information code “26000” are given , the special regulation in § 26a UStG 1994 and thus the normal tax rate apply. In this case the procedure according to § 26 Abs. 3 Z 2 UStG 1994 is not allowed.

If the universal service operator wishes to apply the reduced tax rate, he must submit a standard customs declaration with a full data record stating the corresponding goods number or, until the use of the customs declaration with super-reduced data record, stating the corresponding short number and the information code for the reduced tax rate .

The special regulation cannot be used if the procedure in accordance with Section 26 (3) (2) UStG 1994 is used.

Marginal numbers 3447 to 3460: currently free .

27.Special supervisory measures to secure the tax claim ( § 27 UStG 1994 )

27.1. Liability for breach of due diligence

A reference is corrected in margin no. 3463 in example 1.

Rz 3463 reads:

[…]

Example 1:

A search engine redirects customers to suppliers’ websites. The suppliers have to pay 1% of the assessment base of the delivery to the search engine as a brokerage fee for each forwarded customer – regardless of whether he is based in Austria, the rest of the Community or in a third country – who orders goods in the course of the forwarding. On the basis of these agreements, the search engine collects a total of 40,000 euros from the suppliers.

Solution:

Since the sales of the suppliers achieved via the search engine amount to 4,000,000 euros (40,000 euros x 100 = 4,000,000 euros), the search engine is considered a participating entrepreneur within the meaning of Section 27 Paragraph 1 Z 3 2 UStG 1994 in conjunction with Section 1 Due Diligence VAT Ordinance . It is therefore necessary to check whether the search engine is sufficiently careful within the meaning of Section 3 no. 2 of the Due Diligence Tax Ordinance (see example 2).

[…]

28. General transitional provisions ( § 28 UStG 1994 )

3541 and heading 28.1. adhere to the changes made by the 2nd COVID-19 Tax Measures Act (2nd COVID-19-StMG), Federal Law Gazette I No. 52/2021 , or to the federal law with which the Income Tax Act 1988, the Sales Tax Act 1994 and the Alcohol Tax Act to be changed, Federal Law Gazette I No. 112/2021 , adapted.

28.1. Deliveries and intra-community acquisitions of protective masks ( § 28 Paragraph 50 and 54 UStG 1994 )

Rz 3541 reads:

In deviation from § 10 UStG 1994 the tax is reduced according to § 28 Abs. 50 and 54 UStG 1994 to 0% for the deliveries and the intra-community acquisitions of protective masks, which are made after April 13th, 2020 and before August 1st, 2020 as well as after January 22nd. 2021 and before 01/01/2022 will be carried out or will occur. Protective masks are also to be understood as meaning fabric masks (and in particular masks from items 6307 90 10, 6307 90 98, 4818 90 10 and 4818 90 90 of the Combined Nomenclature). Face shields are not protective masks for the purposes of this provision.

[…]

28.2. Gastronomy, accommodation, culture and publications ( § 28 Paragraph 52 UStG 1994 )

28.2.1. Gastronomy

Rz 3542 is adapted to the changes made by the COVID-19 Tax Measures Act (COVID-19-StMG), Federal Law Gazette I No. 3/2021 .

Rz 3542 reads:

In the field of gastronomy, according to § 28 Paragraph 52 Z 1 lit. a UStG 1994 applies in the period from July 1st, 2020 to December 31st. 2020 2021 (extension to December 31, 2021 as of initiative application 1109 / A from November 20, 2020 (XXVII. GP)) the tax rate of 5% deviating from § 10 UStG 1994 for the serving of food and the serving of beverages (alcoholic and non-alcoholic beverages) iSd § 111 Abs. 1 GewO 1994. These activities are therefore favored if their nature requires a business license for the hospitality industry. Administration and serving are to be understood as any arrangement or activity that aims to ensure that the food or drinks are enjoyed on the spot and that goes beyond a mere commercial activity (e.g. sale of commercially packaged goods).

[…]

28.2.1.1. Agricultural gastronomy

Rz 3543 is adapted to the changes made by the COVID-19 Tax Measures Act (COVID-19-StMG), Federal Law Gazette I No. 3/2021 .

Rz 3543 reads:

In the area of ​​agricultural gastronomy (Almausschank, Buschenschank), which is covered by § 22 UStG 1994 and is subject to the flat tax rate according to § 22 Abs. 1 UStG 1994 , according to § 22 Abs. 2 UStG 1994 also with the one of § 28 Abs. 52 1 lit. a UStG 1994 – as for drinks that fall under Section 10 (3) No. 11 UStG 1994 , listed in the annexes to the UStG 1994 or mentioned in Section 28 (51) No. 1 UStG 1994 – No additional tax to be paid in the period from July 1, 2020 to December 31, 2021 (see margin no. 2871 ff).

[…]

28.2.2. accommodation

Rz 3544 is adapted to the changes made by the COVID-19 Tax Measures Act (COVID-19-StMG), Federal Law Gazette I No. 3/2021 .

Rz 3544 reads:

Deviating from § 10 Paragraph 2 Item 3 lit. c and d UStG 1994 , according to § 28 Paragraph 52 Item 1 lit. 2020 2021 (extension until December 31, 2021 as of initiative application 1109 / A from November 20, 2020 (XXVII. GP))for accommodation in furnished living rooms and bedrooms and the regularly associated ancillary services (including heating) as well as the rental (transfer of use) of land for camping purposes and the regularly associated ancillary services, insofar as a uniform usage fee is paid for this, the reduced tax rate of 5% to use. If guests arrive in June and do not leave until July, the invoice must be divided between the tax rates and overnight stays are taxed at 10% until July 1, 2020 and 5% from July 1, 2020.

[…]

28.2.2.1. Input tax deduction for travel expenses

Rz 3545 is adapted to the changes made by the COVID-19 Tax Measures Act (COVID-19-StMG), Federal Law Gazette I No. 3/2021 .

Rz 3545 reads:

Section 10 (2) UStG 1994 is also applicable for the input tax deduction for travel expenses in accordance with Section 13 (1) UStG 1994 for the period from July 1st, 2020 to December 31st. 2020 2021 (extension to December 31, 2021 as of initiative application 1109 / A from November 20, 2020 (XXVII. GP)) is decisive (for the legal situation before May 1, 2016 and after October 31, 2018 see margin no.2201). The input tax from flat-rate daily and overnight allowances is therefore still calculated with the reduced tax rate of 10% during the period of the temporary reduction in the sales tax rate in the hospitality and accommodation sector to 5%.

28.2.3. Culture

Rz 3546 is adapted to the changes made by the COVID-19 Tax Measures Act (COVID-19-StMG), Federal Law Gazette I No. 3/2021 .

Rz 3546 reads:

Notwithstanding § 10 VATA 1994 is for those of § 10. 3 1 lit. b (except in to 13 Annex 2 11 Z -enumerated objects) and lit. c (see Rz 1352 ff) Z 4 (see Rz 1386 ff) and items 6 to 8 (see margin nos. 1398 to 1433) UStG 1994 recorded deliveries, other services, imports or intra-community acquisitions, for the period from 1.7.2020 to 31.12. 2020 2021 (extension to December 31, 2021 as of initiative application 1109 / A from November 20, 2020 (XXVII. GP)) , the reduced tax rate of 5% in accordance with Section 28 (52) 1 lit. b UStG 1994to use. There were no changes in the scope of the benefits in these areas. If sales were previously taxable at 13%, the reduced tax rate of 5% applies for a limited period in accordance with Section 28 (52) 1 lit. b UStG 1994 .

[…]

28.2.3.1. Photographs taken by the artist

Rz 3547 is adapted to the changes made by the COVID-19 Tax Measures Act (COVID-19-StMG), Federal Law Gazette I No. 3/2021 .

Rz 3547 reads:

In addition to the previously favorable sales in the field of art and culture (see margin 3546) in accordance with § 28 para. 52 1 lit. c VAT Act 1994 in the period from 07.01.2020 to 31.12. 2020 2021 (extension to December 31, 2021 as of initiative application 1109 / A from November 20, 2020 (XXVII. GP)) covered by the reduced tax rate of 5%:

[…]

28.2.4. Publications

Rz 3548 is adapted to the changes made by the COVID-19 Tax Measures Act (COVID-19-StMG), Federal Law Gazette I No. 3/2021 .

Rz 3548 reads:

In deviation from Section 10 of the UStG 1994 , publications that were previously covered by Section 10 (2) no.1 lit.a in conjunction with Annex 1 no.33 UStG 1994 (see margin no ff) are recorded for the period from 1.7.2020 to 31.12. 2020 2021 (extension to December 31, 2021 status of initiative application 1109 / A of November 20, 2020 (XXVII. GP); newspapers and other periodical publications in physical and electronic form (see § 10 para. 2 no. 1 lit. a in conjunction with Annex 1 no. 33 lit.b and § 10 Paragraph 2 Item 9 in conjunction with Annex 1 Item 33 lit.b UStG 1994) are not covered by this extension) the reduced tax rate of 5% in accordance with § 28 Paragraph 52 Item 1 lit.b UStG 1994to use. This does not apply to newspapers and other periodical publications in physical and electronic form (see Section 10 (2) (1) (a) in conjunction with Annex 1 (33) (b) and Article 10 (2) (9) in conjunction with Annex 1 (33) (b) of the UStG 1994 ). For these, the reduced tax rate only applies in the period from July 1, 2020 to December 31, 2020. The scope of the previously favored benefits was not affected by the introduction of the reduced tax rate of 5%.

Marginal numbers 3549 to 3550 : currently free.

After Rz 3548 will respect changes by the COVID-19 Control Measures Act (COVID-19 STMG), BGBl. I no. 3/2021 , the new margin 3549 including a new heading “28.3. COVID-19 in vitro diagnostics and COVID-19 vaccines as well as other closely related services ( § 28 Paragraph 53 Z 3 UStG 1994 ) “inserted.

28.3. COVID-19 in-vitro diagnostics and COVID-19 vaccines as well as other closely related services ( Section 28 Paragraph 53 Z 3 UStG 1994 )

Rz 3549 reads:

Regardless of § 6 UStG 1994 and Art. 6 UStG 1994 , the delivery, intra-community acquisition and import of COVID-19 in vitro diagnostics and COVID-19 vaccines, as well as Other services closely related to these diagnostics or vaccines are tax-free. The exclusion from the input tax deduction does not apply to these sales. The sales falling under § 28 Paragraph 53 Z 3 UStG 1994 are to be included in the calculation of the small business limit.

“Other services closely related to these diagnostics and vaccines” are to be understood as services that are specific and essential to the tests or the vaccination. This includes measures to carry out tests or vaccinations, such as other services in connection with compliance with the necessary hygiene and protective measures, ensuring emergency treatment on site after a vaccination, cooling, transport and storage of the vaccines as well as with Organizational services closely related to testing or vaccination, such as surveying the need for vaccines, setting vaccination dates, carrying out the necessary documentation, assigning the vaccinating doctors or preparing test or vaccination lanes.Section 28, Paragraph 53, Item 3 of the Value Added Tax Act 1994 . On the other hand, catering services for the staff of the vaccination streets and the cleaning of rooms that are used for testing or vaccination are not other services that are closely related to vaccination. Furthermore, the development of COVID-19 diagnostics or COVID-19 vaccinations is not favored, because these are not closely related to the implementation of the test or vaccination.

The entrepreneur can waive the application of § 28 Paragraph 53 Z 3 UStG 1994 . The waiver can be exercised once and has a general effect, ie. for all sales of the entrepreneur. If the entrepreneur waives the application of Section 28 (53) No. 3 UStG 1994 , these services can be illegally tax-exempt under the conditions of Section 6 (1) No. 19 UStG 1994 .

Marginal number 3550 : currently free.

101. Intra-Community acquisition ( Art. 1 UStG 1994 )

101.6. New vehicles; excise goods

In margin no. 3643, the statements on goods subject to excise duty are deleted insofar as they relate to outdated legal situations.

Rz 3643 reads:

Legal position until December 31, 2007

Goods subject to excise duty within the meaning of Art. 1 Para. 6 UStG 1994 are mineral oil, alcohol, alcoholic beverages and tobacco products. The acquisition threshold regulation does not apply to the acquisition of these goods or to the acquisition of new vehicles. The intra-Community acquisition of such goods is therefore also taxable for a threshold buyer.

Legal situation from January 1st, 2008

Goods subject to excise duty within the meaning of Art. 1 Para. 6 UStG 1994 are alcohol, alcoholic beverages, tobacco products and energy products, in each case within the meaning of the applicable Community regulations, but not gas and electricity supplied via the natural gas distribution network. In addition to mineral oils, energy products include coal and coke in particular. The acquisition threshold regulation does not apply to the acquisition of these goods or to the acquisition of new vehicles. The intra-Community acquisition of such goods is therefore also taxable for a threshold buyer.

Legal situation as of January 1, 2011

Goods subject to excise duty within the meaning of Art. 1 Paragraph 6 UStG 1994 are alcohol, alcoholic beverages, tobacco products and energy products, in each case within the meaning of the applicable Community regulations, but not gas supplied via the natural gas distribution network or a network connected to such a network. In addition to mineral oils, energy products include, in particular, coal and coke, but not electricity. The acquisition threshold regulation does not apply to the acquisition of these goods or to the acquisition of new vehicles. The intra-Community acquisition of such goods is therefore also taxable for a threshold buyer.

Marginal numbers 3644 to 3650: currently free .

101a. Consignment warehouse regulation ( Art. 1a UStG 1994 )

101a.1. Consignment settlement regulation (from 1.1.2020)

Margin nos 3691 and 3692 are adapted to the guidelines of the VAT Committee for calculating the 12-month period for items that are brought under the consignment warehouse regulation (guideline from the 118th meeting, taxud.c.1 (2021) 4554683, working document no . 1015).

Rz 3691 reads:

[…]

If the goods are not delivered to the planned purchaser within 12 months of their arrival at the consignment warehouse , they are taxable on the day after the 12 months have elapsed ( Art. 1 Para. 3 UStG 1994 ) . The delivering entrepreneur must register in the consignment warehouse state for sales tax purposes and include the (now taxable) shipment in a new recapitulative statement (without reference to the consignment warehouse regulation).

The FIFO procedure (“First In – First Out”) can be used to determine the 12-month period. The FIFO method is not limited to bulk goods. The FIFO method can also be used to calculate the 12-month period for goods that can be individually recorded and identified, provided that they are identical items. The FIFO method can also be used if the goods come from different suppliers and are stored in the same warehouse. In this case, the FIFO procedure is to be used separately for the inventory of each supplier.

If a recapitulative report is mistakenly submitted about a delivery to a consignment warehouse (KL code 1), the recapitulative report can also be corrected at a later date. In this case, KL code 1 must be replaced by KL code 2 (same line).

101a.2. Return

Rz 3692 reads:

[…] In the case of a return shipment, the original shipment to the consignment warehouse state is not taxable even after the 12 months have elapsed. The return must be included in the recapitulative statement (new line with KL code 2) for the period in which the change occurs. If only some of the goods for which the consignment warehouse regulation is used are returned, this will also not trigger any taxation. For those goods that remain in the consignment warehouse, the consignment warehouse regulation continues to apply.

The return is deemed to have taken place when the goods arrive on the territory of the Member State from which they were originally sent or transported. This is the time at which the items arrive at the supplier’s warehouse.

The return must be included in the recapitulative report (new line with KL code 2) for the reporting period in which the month following the return ends.

103. Delivery ( Art. 3 UStG 1994 )

In section 103.1. the reference is corrected.

103.1. Spend as delivery against payment

See margin nos. 3601 to margin nos. 36 17 25 .

The heading to section 103.2. is adapted to the legal situation changed by the StRefG 2020, Federal Law Gazette I No. 103/2019 , with which the consignment warehouse regulation was included in Art. 3 Para. 2 UStG 1994 . In the currently available margin no. 3713, explanations on the consignment warehouse regulation are included.

103.2. Consignment warehouse regulation (Art. 3 Para. 2 UStG 1994 repealed)

Marginal number 3713: currently free.

Rz 3713 reads:

For shipments of goods to consignment warehouses in other Member States, Art. 1a UStG 1994 , which contains the regulations for shipments to consignment warehouses in Austria, shall apply mutatis mutandis. Therefore see margin nos. 3691 to 3695.

103.3. Intra-community mail order business

103.3.2.2. Movement of goods

Due to the new regulation of Art. 221 para. 4 UZK-IA as amended DVO (EU) 2021/235 of February 8, 2021, from the entry into force of the e-commerce package – i.e. from July 1, 2021 – goods with an individual value per shipment of up to 150 euros, for which the special regulation according to § 25b UStG 1994 (IOSS) does not apply, can only be cleared for free circulation at a customs office in the Member State in which the dispatch or transport of the goods ends (see also the explanations to margin no. 451).

This means that an import with customs clearance of goods with an individual value per shipment of up to 150 euros in a Member State other than the Member State of destination is not possible under customs law if the IOSS is not used. The examples in margin no. 3716 are adapted to this new legal situation.

Rz 3716 reads:

The object of the delivery must pass from one Member State to the other. Until June 30th, 2021, the mail order regulation will also apply if the supplier imports the delivery item into the Community and the dispatch takes place in a Member State other than the Member State of destination. From July 1, 2021, there will be import mail order business in such cases (see margin no. 451).

Example 1:

The Russian entrepreneur R delivers goods from Moscow to the private W in Vienna (delivery condition “duty paid and taxed”) and has the transport arranged by a forwarding agent commissioned by him. He has the goods cleared for free circulation in Germany. The individual value of the shipment is 180 euros.

Solution:

From July 1, 2021, R has to pay tax on an import mail order business in Austria, because the place of delivery is in Germany in accordance with Section 3 (8a) lit. a UStG 1994 . The regulations for intra-Community mail order business ( Art. 3 Para. 3 UStG 1994 ) do not apply – regardless of the amount of the entrepreneur’s sales. Until June 30th, 2021, the place of delivery is determined in accordance with Art. 3 Para. 3 UStG 1994 : If R has exceeded the delivery threshold of 35,000 euros either in the previous year or in the current year or if it has waived its application, the place of delivery is in Austria.

When using the IOSS (§ 25b UStG 1994) , R must declare the import mail order sales through it. In this case, the import is tax-free according to § 6 Abs. 4 Z 9 UStG 1994.

Example 2:

Details as in example 1, but the individual value of the shipment is 50 euros and the goods are released for free circulation in Austria in accordance with Art. 221, Paragraph 4 of the UZK-IA (customs “shipping procedure”) .

Solution:

In this case, an import act is set in Austria. The place of delivery would be either 8 UStG 1994 at clearance by W in accordance with § 3 para. In Russia or clearance by R is according to § 3 para. 9 UStG 1994 in Austria. The intra-Community shipping trade regime and § 3 para. 8 letter a VAT Act 1994 will come not in both cases the application (see. Also Rz 451) .

If R makes use of the IOSS from July 1, 2021 and declares the turnover through this, there is an import mail order business in accordance with § 3 Paragraph 8a lit.b UStG 1994 and the delivery is taxable in Austria. In this case, the import is tax-free according to § 6 Abs. 4 Z 9 UStG 1994 .

103.3.3. Legal consequences

In margin no. 3717 , the date of entry into force is due to the postponement of the relevant Union law regulation by resolution (EU) 2020/1109 of the Council of July 20, 2020 amending Directives (EU) 2017/2455 and (EU) 2019/1995 with regard to the implementation deadline and the start of validity adjusted in response to the COVID-19 pandemic .

Rz 3717 reads:

The delivery is deemed to have been carried out where the dispatch or transport ends. The delivery is taxable and subject to tax in the respective country of destination. The domestic supplier must meet the corresponding sales tax regulations of the other member state. The supplier must therefore be registered in the other member state and in most member states also needs a fiscal representative (see margin nos. 3526 to 3536). From 01/01/2021 01/07/2021 it is possible , under certain conditions, to declare all intra-Community mail order sales via the EU-OSS ( Art. 25a UStG 1994 ) in a single member state. In this case, there is no registration requirement in other Member States. See margin no. 4297 ff.

103.5. Place of delivery for shipping by small businesses (from July 1, 2021)

According to margin no. 3732, two examples are added to margin no. 3733 for the application of the turnover limit for micro-entrepreneurs that has been in force since July 1, 2021; At the same time, statements from margin no.3732 are adopted in margin no.3733.

Rz 3732 reads:

[…]

The sales limit is calculated from the total amount of intra-Community mail order sales in the rest of the Community plus sales for other electronically provided services, telecommunications, radio and television services to non-entrepreneurs in the rest of the Community ( Art. 3a (5 ) UStG 1994 ).

The entrepreneur can waive the application of Art. 3 Para . See accordingly margin no.3919 .

For the exclusion of the mail order regulation when applying differential taxation, see margin no.4251 .

Rz 3733 reads:

The sales limit is calculated from the total amount of intra-Community mail order sales to the rest of the Community plus sales for other electronically provided services, telecommunications, radio and television services to non-entrepreneurs in the rest of the Community ( Art. 3a Para. 5 UStG 1994 ).

Example 1:

Entrepreneur U operates her company in Austria and has no business premises in other Member States. In 2021, U will only make deliveries within Austria. From January to August 2022, U generates intra-community mail order sales in the following amount:

• to Germany: 5,000 euros
• to France: 4,900 euros

On November 4th, 2022, U also carries out an intra-community mail order business worth 200 euros to a consumer in France.

Solution:

In 2021, U only generated sales within Austria and therefore does not exceed the sales limit for micro-entrepreneurs. In 2022, U is still to be treated as a micro-entrepreneur in accordance with Art. 3 Para. 5 UStG 1994 until the turnover limit is exceeded . The place of delivery for the intra-Community mail order sales carried out up to the exceeding of the sales limit is in accordance with § 3 Abs. 8 UStG 1994 at the beginning of the transport or dispatch, ie. in Austria.

With the sale of the goods for 200 euros on November 4, 2022, U exceeds the sales limit and is no longer to be treated as a micro-entrepreneur for the sales carried out from this point in time. According to Art. 3 Para. 3 UStG 1994, the place of delivery for intra-Community mail order sales from the time the sales limit is exceeded is in the Member State in which the transport or dispatch ends. This also applies to the intra-Community mail order sales of EUR 200 carried out in November.

Example 2:

In 2021, the Austrian mail order company V will generate intra-community mail order sales of EUR 200,000. In 2022, V carries out intra-Community mail order sales to Germany.

Solution:

V is not to be treated as a micro-entrepreneur in 2022 because the turnover limit in Article 3 (5) lit. c UStG 1994 was exceeded in the previous year. Therefore, the delivery of all intra-Community mail order sales performed in 2022 is in accordance with Art. 3, para. 3 UStG 1994 at the end of transport or shipment, ie. in Germany.

The entrepreneur can waive the application of Art. 3 Para . See accordingly margin no.3919.

For the exclusion of the mail order regulation when applying differential taxation, see margin no.4251.

Marginal numbers 373 3 4 to 3740 : currently free .

103.7. New vehicles; excise goods

103.7.1. Delivery of new vehicles

In margin no. 3766, the references in brackets are corrected.

Rz 3766 reads:

According to Art. 3 (7) UStG 1994 , the mail order regulation does not apply to the delivery of new vehicles. In all cases, these are taxed in the country of destination because private customers and threshold buyers also realize intra-Community acquisitions without considering the acquisition threshold (see margin nos. 3651 to 3657 and 3697 to 3698 3705 ).

103.7.2. Excise goods

In margin no. 3767, among other things. Reference is made to the change in the legal situation from July 1, 2021 due to the new regulation of the mail order regulation and the associated elimination of the delivery threshold. The example in this margin is adapted accordingly.

Rz 3767 reads:

For goods subject to excise duty (see margin no. 3643) that are the subject of intra-community dispatch or transport, the country of destination principle always applies. In the case of private individuals, this is achieved through the mail order regulation (no application of the small business regulation in Art. 3 (5) UStG 1994 or until June 30, 2021: the delivery threshold), in the case of entrepreneurs and legal entities through the income taxation (no income threshold, see margin no. 3643).

Example:

A wine merchant I in Italy sends 15 cartons of wine by rail

a) to a private person in Klagenfurt.

b) to an association in Villach.

ad a) even if I does not exceed the small business limit in Austria (until June 30th, 2021: delivery threshold in Austria ) , the place of delivery is in Austria.

ad b) I deliver in Italy. Regardless of whether the intra-community delivery is tax-free in Italy, the association has to pay tax on an intra-community acquisition in Austria, even if it has not exceeded the acquisition threshold.

Marginal numbers 3768 to 3775: currently free .

104. Tax base ( Art. 4 UStG 1994 )

104.1. Intra-Community acquisition

In margin no.3921, the reference to Section 6 (6) NoVAG 1991 is deleted because this legal position is outdated.

Rz 3921 reads:

The intra-community acquisition is generally measured according to the remuneration. Excise taxes that are not included in the consideration but are owed or paid by the purchaser are to be included in the assessment base. According to § 1 Z 2 NoVAG 1991 in the version of Federal Law Gazette I No. 34/2010, the standard consumption tax is subject to the intra-community purchase ( Art. 1 UStG 1994 ) of vehicles from July 1 , 2010, with the exception of purchase by authorized vehicle dealers for onward delivery. The NoVA is not part of the assessment basis for intra-Community acquisitions (see ECJ December 22, 2010, case C-433/09 , Commission / Austria ). The NoVA increases by the 20 percent NoVA surcharge (Section 6 (6) NoVAG 1991) .

The foreign sales tax is not part of the assessment base, regardless of whether it was or could be claimed as input tax abroad.

Marginal numbers 3922 to 3930: currently free.

106. Tax exemptions ( Art. 6 UStG 1994 )

In section 106.1. the reference is corrected.

106.1. Tax exemption for intra-community deliveries

see margin nos. 3981 to 40 2 3 0.

106.2. Tax exemption for intra-community acquisitions

Since the period of validity of the pandemic-related tax exemption for the import of certain aid goods was extended to December 31, 2021 with Decision (EU) 2021/660 of the Commission from April 19, 2021 (C (2021) 2693) and also the ig. Acquisition of protective masks, the import of which is tax-free so that they can continue to be tax-free, will be adjusted accordingly to margin number 3941. In addition, the 2nd COVID-19 Tax Measures Act, Federal Law Gazette I No. 52/2021 , also changed the period of validity of the reduced tax rate of 0% for the ig. Acquisition of protective masks in § 28 Paragraph 54 UStG 1994 by June 30th, 2021 as well as by the federal law amending the Income Tax Law 1988, the Sales Tax Law 1994 and the Alcohol Tax Law , Federal Law Gazette I No. 112/2021, extended to December 31, 2021, so that the relevant note is also adapted.

Rz 3941 reads:

The intra-community acquisition of goods is tax-free

[…]

• From January 30, 2020 to April 30, 2021 December 31 , 2021 , in connection with the COVID-19 crisis (Commission Decision (EU) 2020/491 of April 3, 2020, C (2020) 2146, Decision (EU) 2020/1101 of the Commission of 23 July 2020, C (2020) 4936, as well as Decision (EU) 2020/1573 of the Commission of 28 October 2020, C (2020) 7511 and Decision (EU) 2021/660 of the Commission of 19 April 2021 , C (2021) 2693) the import of relief goods, e.g. protective masks (textile protective masks, paper protective masks, FFP2 and FFP3 protective masks), protective clothing, protective gloves, face shields, disinfectants, are tax-free for the benefit of disaster victims under certain conditions (see in detail margin no.1025). In these cases, the intra-community acquisition is also tax-free (at the tax rate of 0% for the intra-community acquisition of protective masks in the period after April 13, 2020 up to and including July 31, 2020 as well as after January 22, 2021 and before January 1, 2022 see margin no. 3541).

Marginal numbers 3942 to 3950: currently free.

120. Assessment period and individual taxation ( Art. 20 UStG 1994 )

120.2. Individual vehicle taxation

In margin no. 4122 a reference to margin no. 3921 is added and the reference to Section 6 (6) NoVAG 1991 is deleted, as this legal position is obsolete. In addition, the references in margin nos. 4121 and 4123 have been corrected.

Rz 4121 reads:

In the case of intra-community acquisition of new vehicles (for the definition of “new vehicle” see margin nos. 3667 to 36 77 85 ) by natural persons in the non-corporate sector (see margin nos. 3660 to 3666 ), there is no assessment, but individual vehicle taxation. The intra-Community acquisition of new vehicles by other than the aforementioned buyers is the subject of the assessment and must be included in the pre-registration and in the tax return.

Rz 4122 reads:

The assessment basis is the fee, which does not include the standard consumption tax. See also margin no. 3921. According to Section 6 (6) NoVAG 1991, this means that the standard consumption tax increases by 20%.

Rz 4123 reads:

With regard to the procedure, see margin nos . 4141 to 4150 .

121. Declarations ( Art. 21 UStG 1994 )

121.3. EU sales list (ZM)

121.3.3. Affected entrepreneurs

In margin nos. 4153 to 4155, statements on outdated regulations (legal situation before 2010) are deleted.

In addition, a reference to margin nos. 3691 to 3695 is included in margin no. 4154 on the obligation to report when using the consignment warehouse regulation in accordance with Art. 3 Para. 2 in conjunction with Art. 1a UStG 1994 .

Rz 4153 reads:

According to Art. 21 Para. 10 UStG 1994 in connection with § 1 of the regulation of the Federal Ministry of Finance, Federal Law Gazette II No. 512/2006 as amended ( FOnErklV ), the transmission of the recapitulative statement electronically in the FinanzOnline (https: // finanzonline .bmf.gv.at), unless the electronic transmission is unreasonable for the entrepreneur due to a lack of technical requirements or he or the company or community is not obliged to submit advance sales tax returns because the sales limit is not reached (see margin no. 2755 or § 2 FOnErklV, Federal Law Gazette II No. 512/2006 as amended). In the event that the electronic transmission is unreasonable, the relevant official U13 form must be submitted to the responsible tax office by the end of the calendar month following the reporting period (= calendar month or calendar quarter, depending on the advance notification period for the advance VAT return). For reporting periods up to December 31, 2009, in the case of electronic transmission of the recapitulative statement, the transmission deadline is extended to the 15th of the month following the reporting period.

For reporting periods from January to June 2010, the consequences of default (late payment surcharge) are waived if the electronic return of the recapitulative statement is made by the 15th of the month following the reporting period.

The ordinance of the Federal Ministry of Finance, Federal Law Gazette No. 140/1995, regarding the automated transmission of recapitulative data is no longer applicable for transmission periods after December 31, 2003.

Rz 4154 reads:

Legal situation until December 31, 2009:

Entrepreneurs (§ 2 UStG 1994) who have carried out intra-community deliveries (intra-community shipments) during a reporting period are obliged to report. Entrepreneurs also have to submit a ZM who, as acquirers in a triangular transaction according to Art. 25 UStG 1994, made deliveries subject to tax during the reporting period. Entrepreneurs are also dependent legal persons within the meaning of Section 2 Paragraph 2 Z 2 UStG 1994 (affiliated companies), provided they have their own VAT ID (see margin no. 4342). If flat-rate farmers and foresters carry out intra-community deliveries, they must also submit a ZM, although these sales are not tax-exempt.

Legal situation from January 1st 2010:

Entrepreneurs are obliged to report ( § 2 UStG 1994 ) who, during a reporting period, make intra-community deliveries (intra-community shipments) and other services subject to tax in the rest of the community, for which the recipient of the service is subject to Art. 196 VAT Directive 2006/112 / EC as amended by Directive 2008/8 / EG owes the tax. Entrepreneurs also have to submit a ZM who, as acquirers in a triangular transaction according to Art. 25 UStG 1994, made deliveries subject to tax during the reporting period. Employed legal persons within the meaning of Section 2 Paragraph 2 Z 2 UStG 1994 are also considered to be entrepreneurs(Affiliated companies), provided they have their own UID (see margin no. 4342). If flat-rate farmers and foresters carry out intra-community deliveries, they must also submit a ZM, although these sales are not tax-exempt (see also margin nos. 2858 and 3988).

Other services that are taxable in the rest of the Community and for which the recipient of the service owes the tax in accordance with Art 44 VAT Directive 2006/112 / EC .

These are other services for which – unless a special regulation applies – the place of performance depends on where the recipient of the service, the entrepreneur, has the seat of his economic activity or where there is a permanent establishment to which this service is located was provided.

This provision therefore applies to other services for which the recipient location principle applies as a basic rule for determining the place of performance.

In the Austrian UStG 1994 this regulation is contained in § 3a Abs. 6 UStG 1994 .

The following services are not to be included in the ZM:

• Real estate services
• Passenger transport services
• Restaurant and catering services
• Short-term rental of means of transport

such as

• From January 1, 2010 to December 31, 2010: cultural, artistic, scientific, teaching, sporting, entertaining or similar services, such as services in connection with trade fairs and exhibitions, including the services of the respective organizers
• From January 1, 2011: other services relating to admission rights and related other services for cultural, artistic, scientific, teaching, sporting, entertaining or similar events such as trade fairs and exhibitions.

Entrepreneurs and non-taxable legal persons are obliged to disclose their UID to the respective service providers. If the UID is not yet available at the time the service is received, it must be reported immediately afterwards ( Art. 55 Reg. (EU) 282/2011 ).

For the reporting obligation when using the consignment warehouse regulation according to Art. 3 Para. 2 in conjunction with Art. 1a UStG 1994 see margin nos. 3691 to 3695.

Rz 4155 reads:

Legal situation until December 31, 2009:

For reporting periods in which no intra-community deliveries have been made, no ZM are to be submitted, unless the entrepreneur is requested by the tax authority to submit a ZM. The ZM must be submitted to the tax office responsible for the assessment of sales tax. If the determining and collecting tax office are not identical, the ZM must be submitted to the determining tax office (to which the tax returns must also be submitted). The controlling subsidiaries have to submit the ZM to the tax office responsible for the collection of the sales tax of the controlling company.

Legal situation from 1.1.2010:

No ZMs are to be submitted for reporting periods in which no intra-Community deliveries or other taxable services in the rest of the Community area for which the recipient of the service owes the tax according to Art. 196 VAT Directive 2006/112 / EC in the version 2008/8 / EC , unless the entrepreneur is requested by the tax authority to submit a ZM. The ZM must be submitted to the tax office responsible for the assessment of sales tax. If the determining and collecting tax office are not identical, the ZM must be submitted to the determining tax office (to which the tax returns must also be submitted). The controlling subsidiaries have to submit the ZM to the tax office responsible for the collection of the sales tax of the controlling company.

121.6. Information in the ZM

The reference is corrected in margin no. 4172.

Rz 4172 reads:

Regarding country codes, see margin nos. 4343 to 43 44 50 .

121.7. Temporal reference of the ZM

In margin nos. 4186 and 4188, statements on outdated regulations (legal situation prior to 2010) are deleted.

In addition, in margin no. 4188 information on the purchaser’s obligation to report triangular transactions in accordance with Art. 25 UStG 1994 on margin no. 4192 and on the obligation to report when using the consignment warehouse regulation in accordance with Art. 3 (2) in conjunction with Art. 1a UStG 1994 on margin nos. 3691 to 3695 are included.

Rz 4186 reads:

Entrepreneurs who are required to report must submit a ZM electronically by the end of the calendar month following the reporting period (calendar month or calendar quarter) (for exceptions see margin no. 4153). From January 2006 includes d D he reporting period includes – depending on the pre-registration period for the VAT return – a calendar month or calendar quarter. Combining several reporting periods (months or quarters) into one ZM is not permitted. For reporting periods up to December 31, 2009, the deadline for data transmission via FinanzOnline is extended by 15 days.

With regard to the consequences of default for reporting periods from January to June 2010, see margin no. 4153.

Rz 4188 reads:

In the ZM following are for the reporting period deliveries of goods sales record:

All intra-community deliveries to a buyer / entrepreneur within the same reporting period are to be summarized in one line under his UID.

For reporting periods from January 1st, 2010 the following also applies:

All other services for which the service recipient owes the tax according to Art. 196 VAT Directive 2006/112 / EC as amended by Directive 2008/8 / EC to a service recipient within the same reporting period must be summarized in one line under his VAT ID .

For the obligation of the purchaser to report triangular transactions according to Art. 25 UStG 1994 see margin no. 4192, for the obligation to report when using the consignment warehouse regulation according to Art. 3 Para. 2 in conjunction with Art. 1a UStG 1994 see margin nos. 3691 to 3695.

125a. Special regulation for EU entrepreneurs who provide other services to non-entrepreneurs, for intra-Community mail order business and domestic deliveries through platforms or other electronic interfaces ( Art. 25a UStG 1994 )

In margin no. 4299 it is made clear that the sales falling under the EU-OSS are only to be included in the quarterly declaration for the EU-OSS. An additional inclusion of such sales in the Austrian UVA or sales tax return does not have to take place in accordance with Art. 25a Paragraph 13 UStG.

125a.2. Explanation

Rz 4299 reads:

All sales falling under the special rule must be included in the declaration for the EU-OSS .

The sales are to be stated separately according to deliveries and other services and furthermore separately according to Member States, stating the applicable tax rate and the tax to be paid. Furthermore, the total tax to be paid must be included in the declaration ( Art. 25a Para. 4 UStG 1994 ). Tax-free sales may not be quoted. If the entrepreneur has not generated any sales in a quarter, he must submit a zero return.

If the special regulation in Art. 25a or a comparable special regulation in another Member State is used, the sales in Austria falling under the special regulation are neither to be included in the UVA nor in the sales tax return ( Art. 25a (13 ) UStG 1994 ).

An editing error in margin no. 4300b has been eliminated.

125a.5. Special regulations

Rz 4300b reads:

[…]

• Changes to the assessment basis of sales that fall under the EU-OSS must be made electronically via the EU-OSS within three years from the date on which the original declaration was to be submitted. The correction is to be included in a later declaration. Reference should be made to the tax period and the tax amount for which changes are required. The original declaration must be corrected by June 30th, 2021 and has retroactive effect on the original declaration period (ex tunc) ) . Corrections to returns for sales that were made before January 1, 2021 and are taxable in the UK can only be made up to and including December 31, 2021.

[…]

128. UID (Art. 28 UStG 1994)

128.1. General

The heading to section 128.1.4. and margin nos. 4343 are updated due to the withdrawal of the United Kingdom and the associated special regulation for Northern Ireland, according to which Northern Ireland continues to be treated as an EU member state with regard to the movement of goods (see margin nos. 146 and 148).

The heading to section 128.1.4. is worded as follows:

128.1.4. Overview of the name and structure of the UID of the EU member states and Northern Ireland (as of January 1, 2021)

Rz 4343 reads:

Member State / Northern Ireland	construction	country code	Format
Belgium	BE0123456789	BE	1 block with 10 digits
Bulgaria	BG123456789(0)	BG	1 block with 9 digits or 1 block with 10 digits
Denmark	DK12 34 56 78	DK	1 block with 8 digits (four blocks with two digits each)
Germany	DE123456789	FROM	1 block with 9 digits
Estonia	EE123456789	EE	1 block with 9 digits
Finland	FI12345678	BE	1 block with 8 digits
France	FRXX 345678901	FR	1 block with 2 characters and 1 block with 9 digits
Greece	EL123456789	THE	1 block with 9 digits
Ireland	IE12345678 IE9S99999L IE9999999WI	IE	1 block with 8 characters or 1 block with 9 characters (see note 1)
Italy	IT12345678901	IT	1 block with 11 digits
Croatia	HR12345678901	HR	1 block with 11 digits
Latvia	LV12345678901	LV	1 block with 11 digits
Lithuania	LT123456789 or LT123456789012	LT	1 block with 9 digits or 1 block with 12 digits
Luxembourg	LU12345678	LU	1 block with 8 digits
Malta	MT12345678	MT	1 block with 8 digits
Netherlands	NL123456789B12	NL	1 block with 12 characters (see note 2 and note 8)
Northern Ireland (from 1.1.2021, see note 10)	XI999 9999 99 or XI999 9999 99 999 (see note 11) or XIGD9996 (see note 12) or XIHA9997 (see note 13)	XI	1 block with 3 digits, 1 block with 4 digits and 1 block with 2 digits; or as above followed by a block of 3 digits; or 1 block with 6 characters
Austria	ATU12345678	AT	1 block with 9 characters (see note 3)
Poland	PL1234567890	PL	1 block with 10 digits
Portugal	PT123456789	PT	1 block with 9 digits
Romania	RO1234567890	RO	1 block with a minimum of 2 and a maximum of 10 digits
Sweden	SE123456789012	I KNOW	1 block with 12 digits
Slovakia	SK1234567890	SK	1 block with 10 digits
Slovenia	SI12345678	AND	1 block with 8 digits
Spain	ESX1234567X	IS	1 block with 9 characters (see note 1)
Czech Republic	CZ12345678 CZ123456789 CZ1234567890	CZ	1 block with 8, 9 or 10 digits
Hungary	HU12345678	HU	1 block with 8 digits
United Kingdom (until December 31, 2020 see note 9)	GB123 1234 12 or GB123 1234 12 123 (see note 4) or GBGD123 (see note 5) or GBHA123 (see note 6)	GB	1 block with 3 digits, 1 block with 4 digits and 1 block with 2 digits; or as above followed by a block of 3 digits; or 1 block with 5 characters
Cyprus	CY12345678L	CY	1 block with 9 characters (see note 7)

Remarks:

1) The other digits after the country code may contain letters.

2) In the tenth position there is always the letter “B”.

3) The first place after the country code is always a “U” and then 8 digits.

4) Differentiates companies in groups (similar to tax group)

5) Distinguishes departments from administrations (GD: Government Departments)

6) Differentiates health authorities (HA: Health Authorities)

7) In the last position there must be a letter.

8) As of January 1st, 2020, all Dutch sole proprietorships have received a new VAT ID number.

9) The transition period for the United Kingdom to leave the EU ends on December 31, 2020. As of January 1st, 2021, the United Kingdom is no longer an EU member state, with the exception of Northern Ireland. See margin nos. 146 and 148.

10) According to Article 8 of the Protocol on Ireland / Northern Ireland, which is part of the Withdrawal Agreement between the EU and Great Britain, the provisions of the VAT Directive 2006/112 / EC will continue to apply to deliveries of goods in Northern Ireland even after Great Britain has left; therefore, separate VAT numbers with the specific prefix XI have been introduced for Northern Ireland. See margin nos. 146 and 148.

11) For branches.

12) For ministries (GD: Government Departments)

13) For health care institutions (HA: Health Authorities).

Rz 4343a will be adapted to the legal situation from July 1, 2021 and supplemented with information on the IOSS and the IOSS identification number.

Rz 4343a reads:

Entrepreneurs based in a third country who provide other services (until June 30, 2021: electronic services ) to non -entrepreneurs based in the EU can – under certain conditions – decide to only be recorded in one EU member state (see margin no. 3431 ff ). In these cases, the entrepreneur receives an EU identification number (e.g. EU040123456) when registering.

For the IOSS identification number (IM number) see margin nos. 3434 ff.

 

Federal Ministry of Finance, November 30, 2021