The European Court of Justice (ECJ) has ruled in 2021 in an Austrian case that the mere letting of real estate (having no personnel) does not constitute a presence of the landlord in the country in which the real estate is situated.
The current view of the German tax administration as set out in the German VAT Application Decree (Umsatzsteuer-Anwendungserlass) is that non-resident landlords are currently deemed to operate from a fixed establishment in Germany for VAT purposes despite a lack of staff in Germany (comparable to the Austrian tax administration’s treatment of non-resident landlords without staff in Austria that was relevant for the court case).
After the present decision, it is questionable whether this administrative interpretation continues to be compatible with Union law.
Source Robert Praetzler
- ECJ C-333/20 (Berlin Chemie A. Menarini SRL) – Judgment – No Fixed establishment via affiliate rendering services on an exclusive basis
- ECJ Cases on Fixed Establishments (Art. 44 & 45)
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