Intra-community delivery (Germany)
An intra-community delivery is a tax exemption under sales tax law, after a cross-border delivery within the European Union (originally within the European Community ) is exempt from sales tax in the country in which the transport began.
Historical development
The legal instrument of intra-community delivery, corresponding to intra-community acquisition , was necessary because the European internal market was introduced at the turn of the year 1992/1993, which means that customs clearance within the European Union is no longer necessary. It is the most important part of the internal market in terms of tax law . The tax-free intra-community delivery has replaced the tax-free export delivery. The import sales tax has been replaced by the taxation of intra-community acquisitions. However, export deliveries and import sales tax are still of considerable importance in the movement of goods with countries outside the European Union ( third countries ).
Requirements and legal classification
principle
The prerequisite for intra-community delivery is that an entrepreneur within his company carries out a delivery to another entrepreneur for his company. For this purpose, the object actually has to be transported from one Member State to another Member State as part of the delivery.
From the purchaser's point of view, the intra-community delivery leads to an intra-community acquisition. This ensures sales taxation in the acquiring country. The purchaser has to pay the purchase sales tax and can at the same time deduct this as input tax, provided that he is entitled to input tax deduction.
Delivery and its location
It must be clarified in advance whether it is a matter of the delivery of an object or another service . Intra-community services to entrepreneurs are carried out according to other regulations without calculation of sales tax.
As with a domestic delivery, the sales tax location is determined in accordance with Section 3 (6) UStG and is therefore where the shipment begins. A delivery by an entrepreneur in the sense of sales tax from Germany to other EU countries is taxable in Germany, i.e. Germany, according to § 1 Paragraph 1 No. 1 UStG .
Tax exemption
The tax exemption according to § 4 No. 1b UStG i. V. m. § 6a UStG is linked to the fact that
- the goods are actually transported from one EU member state to another EU member state as part of the delivery relationship,
- that the recipient is an entrepreneur and purchases the goods as part of his company (exception: individual vehicle taxation, here the delivery of new vehicles to private individuals is also tax-free) and
- that the acquisition in the country of destination (end of the journey) is subject to acquisition tax.
Proof of tax exemption
The delivering entrepreneur has to provide proof of receipt according to §§ 17a UStDV and the accounting certificate according to § 17c UStDV . Evidence of receipt must regularly be provided by duplicating the invoice in which, in accordance with Section 14 Paragraph 4 Clause 1 No. 8 UStG, reference is made to the tax exemption of intra-Community deliveries, and from October 1, 2013 by a confirmation of arrival from the customer or an alternative documentary evidence . The accounting evidence must be kept in such a way that the prerequisites for tax exemption can be easily and clearly derived from the accounting.
The supplier must be able to prove who the recipient of the delivery is. A specific form is not provided.
Furthermore, the customer's entrepreneurial status must be proven. This can be assumed regularly if the customer presents a valid VAT identification number . The number must be recorded as part of the accounting records. The delivering entrepreneur must check whether the VAT identification number can be assigned to the customer and is also valid at the time of delivery. With the help of the sales tax identification number, the supplier reports the sales in the summary report to the Federal Central Tax Office . The German tax authorities pass this information on to the tax authorities of the country of destination and there the tax authorities can check whether the buyer has paid tax on the purchase.
Since the judgment of the Federal Fiscal Court VR 59/03 of December 6, 2007, which goes back to the judgment of the European Court of Justice C-146/05 "Albert Collée" of September 27, 2007, it is recognized in Germany that the book and voucher evidence as such is not a material requirement for tax exemption. Rather, it depends on whether there is actually an intra-Community delivery. The book and voucher proof is no longer a mandatory (material) requirement for granting tax exemption. As a rule, however, it is required in order to be able to provide proof to the tax office without any problems.
In Section 6a of the Sales Tax Application Decree (UStAE), the Federal Ministry of Finance set out the legal opinion of the administration with regard to various issues relating to intra-Community delivery.
Intra-community spending
In order to do justice to the country of destination principle, a transfer to another EU country must also be reported. This process is equivalent to an intra-community delivery ( Section 3 (1a ) UStG ). In the other country, an intra-community acquisition must be taxed accordingly. This includes, for example, the relocation of goods. It should be noted that the transfer to other legally independent but affiliated companies in other EU countries does not constitute an intra-community transfer, but an intra-community delivery.
For this process, the entrepreneur must be registered for sales tax in several countries and also have sales tax identification numbers in the states involved.
Objects that are only used temporarily in another country (e.g. exhibits for a trade fair) do not have to be reported, as they do not remain in the other country permanently. However, there must also be evidence of the whereabouts in the books.
Reporting requirements
The total of the tax-free intra-community deliveries and shipments must be stated in the advance VAT returns ( § 18b UStG ).
The entrepreneur must report the intra-community deliveries and shipments carried out in a summary report to the Federal Central Tax Office ( § 18a UStG ). This means that it can be checked throughout Europe that the buyers tax the deliveries in their countries. Depending on the scope of the deliveries, the report must be made monthly or quarterly.
Problem
The process harbors a multitude of dangers for the performing entrepreneur, as he has to prove all the requirements to the tax authorities. If he does not succeed in doing this, he has to pay the German sales tax retrospectively if he cannot invoke good faith within the meaning of Section 6a (4) UStG .
literature
- Hellmann, Tax Criminal Law Risks of VAT-Free Intra-Community Deliveries, wistra 2005, 161
See also
- Intra-community performance
- Intra-Community acquisition
- Sales tax identification number
- Confirmation of arrival
Individual evidence
- ↑ Federal Tax Gazette II 2009, page 57
- ↑ Request, Opinion and Judgment in Case C-146/05
- ↑ Sales tax application decree ( memento of the original dated November 25, 2011 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.
- ↑ Form server of the Federal Ministry of Finance
