1 Background
Contradictions between Union law and national law are not uncommon in the field of VAT. This is also evident in the German Mensing case. The ECJ had to decide twice on this.
2 Facts of the case
The plaintiff, Harry Mensing, is an art dealer based in Germany. In 2014, artists (authors) supplied works of art from the rest of the Community territory to the plaintiff. The artists treated the supplies in the country of departure as exempt intra-Community supplies.
3 Decision of the ECJ
In its Mensing II decision of 13.07.2023 – C 180/22 – the ECJ states that the VAT due on intra-Community acquisitions is not part of the purchase price. Consequently, it does not reduce the basis of assessment in the context of margin taxation (Art. 312, 315, 317 para. 1 VAT Directive).
4 Praxisfolgen
Resellers who have opted for differential taxation in such cases in the past must take this into account when calculating VAT on the sale. In any case, this applies to all sales up to 05.04.2022.
Source: Dr. Thomas Streit
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