Why is the import duty ineffective

Import sales tax

Table of Contents

1 General overview
2 EU regulations
3 VAT regulations
4 Definition of import
5 Origin and debtor of the EUSt
6 Input tax deduction of import sales tax
6.1 Basic information on the input tax deduction of import sales tax
6.2 Input tax deduction of import sales tax in transfer cases
6.3 Obligations to keep records
7 Tax exemption according to § 4 No. 3 letter a double letter. bb UStG
8 Tax exemption according to § 4 No. 4b UStG
9 Tax exemptions on imports
10 Tax base for imports
11 No interest according to § 233a AO
12 Bibliography
13 Related Lexicon Articles

1. General overview

The import of objects into the customs area is subject to import sales tax. This is intended to bring about the so-called border adjustment. The EUSt is a consumption tax within the meaning of the AO (§ 21 Paragraph 1 UStG). It is administered and collected by the customs authorities.

2. EU regulations

According to Art. 2 Para. 1 Letter d of the VAT Directive), the import of goods is subject to VAT. The import is taxable (Art. 30 VAT Directive) if the item

  • from a third country area,
  • from a customs area of ​​the Community, which is not, however, in terms of sales tax law according to Art. 6 of the VAT Directive (see section 1.10 UStAE, e.g. Canary Islands under Spain or Mount Athos and Greece)

is brought into the community area.

For the EUSt, the regulations for customs duties apply accordingly (§ 21 Paragraph 2 UStG). Regulations for customs duties are all legal norms directly applicable in the Federal Republic of Germany that relate to customs duties (see Klüver in Weimann / Lang, sales tax - national and international, § 21 margin no. 21, 5th edition). The main legal norms of Community law include in particular the Customs Code (ZK) and the Combined Nomenclature.

The codes of the EU are permanently changed and adapted to the Community law. Council Regulation (EEC) No. 2913/92 of October 12, 1992 (Official Journal No. L 302 of October 19, 1992, 1) summarizes the Community's customs regulations in a customs code for the first time. According to Art. 253 ZK 2913/92, the regulation applies from 1.1.1994.

Council Regulation (EEC) No. 2913/92 of October 12, 1992 establishing the Community Customs Code was based on the summary of the customs procedures that were used in the individual Member States in the 1980s. Since its adoption, the ordinance has been significantly changed over and over again in order to solve individual problems such as the protection of good faith or the consideration of security requirements. Further changes to the Customs Code are necessary as a result of the fundamental legal changes that have taken place at Community and international level in recent years. The Commission therefore proposes to simplify customs procedures, taking into account that electronic declarations and procedures are the rule and paper declarations and procedures are the exception. For all these reasons, a further amendment of the current customs code is not enough and a complete revision is necessary.

On the proposal of the Commission, the European Parliament and the Council of the European Union have issued a modernized customs code in Regulation (EC) No. 450/2008 of April 23, 2008 (Official Journal L 145 of June 4, 2008, 1). Regulation (EC) No. 450/2008 of April 23, 2008 (Modernized Customs Code) should come into force on June 24, 2008 to replace Regulation (EEC) No. 2913/92 of October 12, 1992 (Customs Code). According to Art. 188 (2) of the regulation, however, it only applies as soon as the implementing provisions are applicable, but no later than June 24, 2013.

On February 20, 2012, the Commission submitted the proposal for a new version of Regulation (EC) No. 450/2008 (Union Customs Code - UCC -) to the European Parliament and the Council in order to replace the latter before it came into force on June 24, 2013. In order to give the European Parliament and the Council sufficient time to adopt the new version of the Union Customs Code, Article 188 (2), second subparagraph, has been amended so that the Modernized Customs Code No. 450/2008 will now apply on November 1, 2013 (Regulation (EU) No. 528/2013 of June 12, 2013, Official Journal L 165 of June 18, 2013, 62).

The Modernized Customs Code (EC) No. 450/2008 was replaced by Regulation (EU) No. 952/2013 of 9 October 2013 establishing the Union Customs Code (UCC; Official Journal L 269 of 10 October 2013, 1). According to Art. 286 (UZK), Regulation (EC) No. 450/2008 will be repealed from November 1, 2013 and has therefore never entered into force. Regulation (EEC) No. 2913/92 of the Council of October 12, 1992 (Official Journal No. L 302 of October 19, 1992, 1) therefore continues to apply and will become effective in accordance with Art. 286 (2) in conjunction with Art. 288 (2) UCC 1.5.2016 repealed. According to the Implementing Regulation (EU) 2015/2447 of November 24, 2015 (Official Journal L 343 of December 29, 2015, 558), the UCC applies from May 1, 2016.

3. Sales tax regulations

The UStG contains the following provisions on VAT:

Section 1 (1) no. 4 UStGType of turnover import
§ 4 No. 4b UStGTax exemption for a delivery prior to import
§ 5 UStGTax exemptions on import
§ 11 UStGTax base for imports
Section 13 (3) of the UStGFor the origin and the tax debtor of the EUSt applies § 21 Abs. 2 UStG
Section 15 (1) No. 2 UStGDeduction of the VAT paid as input tax
Section 16 (2) sentence 3 UStGDeduction of the EUStat when calculating the tax
§ 16 Abs. 7 UStGValidity of the specially designated regulations for the EUSt
Section 17 (3) of the UStGCorrection of the input tax deduction when changing the VAT
§ 21 Abs. 2 UStGAnalogous application of the regulations for customs duties
Section 22 (2) No. 6 UStGRecord of tax bases for the import of goods

Fig .: Sales tax norms regarding the EUSt

4. Definition of import

An import within the meaning of Section 1 Paragraph 1 No. 4 UStG occurs when goods that are not in free circulation within the Community are brought into the Community territory from a third country area (Section 1 Paragraph 2a Sentence 3 UStG) across a border of the customs territory of the Community becomes. For the taxable import situation under VAT law, it is therefore not only decisive that the item reaches the domestic territory from the third country, but is also subject to taxation here, i.e., as a rule, an import VAT liability arises. Accordingly, there is, for example, no import in the sense of VAT law if a third-country goods are in a customs suspension procedure (Section 15.8, Paragraph 2 UStAE).

The following customs procedures are non-collection procedures (BMF of January 28, 2004, Federal Tax Gazette I 2004, margin no. 64 ff.):

  • the transit procedure (margin no. 65),
  • the customs warehousing procedure (margin no. 66),
  • inward processing according to the suspension procedure (margin no. 67),
  • the conversion procedure (margin no. 68) and
  • temporary admission (margin nos. 69 and 70).

The item is imported into the Member State in whose territory it is located at the time of transfer (Art. 60 of the VAT Directive).

In its judgment of May 6, 2008 (VII R 30/07, BFH / NV 2008, 1971, LEXinform 5007202), the BFH decided the following on import sales tax for goods brought to Germany through another Member State: If goods are shipped from a third country to a Member State of the Community were brought in violation of the regulations, transported on to the Federal Republic of Germany and discovered here, under the conditions of Art. 87 Para. 3 and 4 UZK, not only the customs debt but also the import sales tax liability is deemed to have arisen in the Federal Republic of Germany.

According to Art. 71 para. 1 subpara. 2 of the VAT Directive, the chargeable event and the tax entitlement for items that are subject to customs duties or other joint charges occur at the point in time at which the facts and the entitlement to these common charges arise. Since the import customs debt in the event of an unlawful shipment according to Art. 79 UCC arises at the point in time when the goods are unlawfully brought into the customs territory of the Community, the value added tax is also incurred on the import at this point in time.

5. Origin and debtor of the EUSt

With the corresponding application of Art. 77 UZK, the EUSt arises with import into the Community territory. The declarant is the debtor of the EUSt. In the case of indirect representation, the person on whose behalf the customs declaration is submitted is also the customs debtor (joint and several debtor; Art. 77 (3) UCC).

Art. 79 UCC regulates the incurrence of VAT if the goods are withdrawn from surveillance. The concept of removal of goods from customs supervision encompasses any act or omission that leads to the competent customs authority being prevented from accessing goods under customs supervision and from carrying out the inspections provided for by Community customs law, even temporarily. It does not matter whether the customs authorities actually intend to carry out such an inspection and whether the party involved could make the goods available to the customs authorities for such an inspection. The only decisive factor is that the customs authorities - even if only temporarily - are objectively unable to ensure customs surveillance (BFH judgment of December 7, 2004, VII R 21/04, BFH / NV 2005, 1166).

According to the ECJ ruling of May 18, 2017 (C-154/16, UR 12/2017, 472), there is no import duty within the meaning of Art. 79 UZK if part of the goods subject to import duties has been verifiably destroyed or destroyed or has been irretrievably lost, and as a result is withdrawn from customs supervision. If goods disappear as a result of destruction or destruction, there is no justification for the risk of the goods entering the economic cycle of the Union without customs clearance.

Based on these considerations, the ECJ states that Article 2 (1) (d) and Articles 70 and 71 of the VAT Directive are to be interpreted as meaning that the destroyed or destroyed or irretrievably lost part of the goods that are in the external joint transit procedure , no VAT is payable.

Art. 79 UCC is a catch-all offense and VAT arises if there is a breach of duty.

6. Input tax deduction of import sales tax

6.1. Basic information on the input tax deduction of import sales tax

According to Section 15 (1) Sentence 1 No. 2 UStG, an entrepreneur can use the VAT incurred for items that have been imported into Germany for his company or which he uses to carry out the sales specified in Section 1 (3) UStG as input tax deduct (Art. 168 Letter e of the VAT Directive; Section 15.8, Paragraph 1 of the UStAE). The entrepreneur must be in Time of import the Power of disposal possess the object (Section 15.8, Paragraph 4, Clause 2 UStAE). It is not decisive

  • who was the debtor of the VAT incurred (see also Art. 77 (3) UCC),
  • who paid this and
  • who actually brought the item imported across the border for the entrepreneur entitled to deduct input tax (Section 15.8, Paragraph 4, Clause 3 UStAE).

Note:

It is not necessary that the entrepreneur has paid the EUSt (Section 15.8, Paragraph 7, Clause 1 of the UStAE and Section 15, Paragraph 1, Clause 1, No. 2 of the UStG in the version of the Administrative Assistance Directive Implementation Act - Administrative Assistance Directive - of June 26, 2013, Federal Law Gazette I 2013, 1809). With judgment of March 29, 2012 (C-414/10, BStBl II 2013, 941), the ECJ ruled that Article 168 (e) of the VAT Directive does not allow a member state to deduct the VAT from the actual previous payment of this tax to be made dependent by the tax debtor if he is also the person entitled to the deduction (see also note from March 29, 2012, Association for International Taxes and Finances, Munich, LEXinform 0401811). According to this, the term »owed« referred to in Art. 168 (e) of the VAT Directive refers to a legally enforceable tax liability and therefore requires that the taxpayer is obliged to pay the amount of VAT that he would like to deduct as input tax (see also BMF of November 15. 2013, Federal Tax Gazette I 2013, 1475).

The right to deduct VAT must be exercised for the pre-registration period (tax period) in which the right to deduct arose and the prerequisites for exercising it are met (BFH judgment of February 13, 2014, V R 8/13, BStBl II 2014, 595).

In a departure from the practice that has always been practiced in Germany, the FG Hamburg decided in a judgment of December 19, 2012 (5 K 302/09, EFG 2013, 562, LEXinform 5014577) that an »import for the company« within the meaning of § 15 para. 1 sentence 1 no. 2 UStG does not require that the entrepreneur requesting the deduction of VAT as input tax has the power of disposal over the imported item at the time of import. Also those against the owner of a customs warehouse according to Art. 203, 204 ZK i. In accordance with Section 21, Paragraph 2 of the UStG, so-called irregular EU tax that is set due to breaches of customs duties can be deductible as input tax.

In deviation from Sect. 15.8 para. 4 UStAE and the previous case law, which in the opinion of the FG is outdated, the FG comes to the result that if § 15 para. 1 sentence 1 No. 2 UStG is applied and interpreted in accordance with the directive, a customs warehouse keeper can also Be entitled to deduct input tax from EUSt. The FG Hamburg points out that the incurrence of the EUSt - unlike for VAT according to § 15 Abs. 1 Nr. 1 in conjunction with § 1 Abs. 1 Nr. 1 UStG - is not triggered by a delivery of the items, but by their import, namely the release of an object for free circulation under customs and tax law in a Member State of the Union. This process is independent of the owner-like power of disposal, as a delivery presupposes, and of a corresponding will to rule on the part of the agent. Because the objects, for the import of which the VAT at issue is owed, were used for the company or for the purposes of the plaintiff's taxed transactions - without the imported objects, it would not have been able to provide storage services - the principle of tax neutrality of VAT requires also with her the deductibility (see also notification of the FG Hamburg dated March 28, 2013, LEXinform 0439443).

In the appeal proceedings against the judgment of the FG Hamburg, the BFH overturned the FG judgment for other reasons (incorrect timing of the input tax deduction by the plaintiff) and dismissed the action (BFH judgment of February 13, 2014, VR 8/13, BStBl II 2014 , 595). With its ruling, the BFH did not deal with the main reasons for the FG ruling. Therefore, Section 15.8, Paragraph 4 of the UStAE and the older BFH case law must be observed for the time being and customs warehouse owners are not to be reimbursed for the irregular VAT (ordinance of FinBeh Hamburg of April 20, 2015 (S 7300a - 2012/001 - 51, without reference ).

Note:

In a judgment of 11.11.2015 (VR 68/14, BStBl II 2016, 720), the BFH decided that the operator of a customs warehouse should not be subject to the VAT set against him in accordance with Art. 203 ZK in conjunction with Section 21 (2) UStG is entitled to the input tax deduction according to § 15 Abs. 1 Satz 1 Nr. 2 UStG if he does not obtain power of disposal over the imported goods (against FG Hamburg dated December 19, 2012, 5 K 302/09, EFG 2013, 562, LEXinform 5014577, so ). According to the established jurisprudence of the BFH, the input tax deduction according to § 15 Abs. 1 Satz 1 Nr. 2 UStG presupposes that the entrepreneur is entitled to dispose of the imported object. This is missing, for example, if a foreign entrepreneur leaves an object to a domestic entrepreneur for use without giving him the power to dispose of the object (see also note from December 15, 2015, LEXinform 0947417).

The FG Hamburg appealed to the ECJ in two proceedings in which the plaintiffs defend themselves against the levying of EUSt (FG Hamburg, decisions of February 18, 2014, 4 K 130/12, LEXinform 5016401, Az.EuGH: C-228/14 , LEXinform 0589508 and 4 K 150/12, LEXinform 5016402, Az.EuGH: C-226/14, LEXinform 0589522).

Facts and reasons for the decision of the ECJ:

The plaintiffs in both proceedings are logistics service providers who have transported or stored goods from third countries in the Union for their clients. These third-country goods were re-exported from Union territory in the course of the proceedings. However, the plaintiffs had not ended the external joint transit procedure on time or had not recorded the goods issue in their customs warehouse accounting in good time. Because of this breach of duty, import duty for the goods has been set against them in accordance with Article 204 of the CC. The non-fulfillment of the obligation was only determined after the re-export of the goods.

By order of the President of the Court of Justice dated October 14, 2014, Cases C-226/14 and C-228/14 were joined for the purposes of a joint written and oral procedure and a joint decision. In a judgment of June 2, 2016 (C-226/14, C-228/14, UR 2016, 557, LEXinform 0589522), the ECJ ruled that no VAT is owed in the judgment.

First of all, the ECJ found that the goods originating from a third country were subject to the customs warehousing procedure of a member state before they were exported from the customs warehouse again (Art. 60, 61 of the VAT Directive). Accordingly, these goods were subject to import pursuant to Art. 30 and 61 of the VAT Directive from the time they were brought into the Union until the time they were re-exported.

As the ECJ in margin no.35 of the judgment of September 6, 2012 (C-28/11, LEXinform 0589391), failure to fulfill the obligation to record the removal of the goods from the customs warehouse at the latest at the time of their removal in the inventory records provided for non-Community goods leads to this, even then for the creation of a customs debt for these goods in accordance with Article 204 (1) (a) of the Customs Code if they have been re-exported.

In the main proceedings, however, it is not disputed that the failure to comply with that obligation was established after the goods in question had been re-exported. The goods were therefore subject to the customs warehousing procedure until they were re-exported and there was undoubtedly no risk of them entering the economic cycle of the Union. In addition to the customs debt, there may be a VAT obligation if, on the basis of the misconduct that led to the creation of the customs debt, it can be assumed that the goods in question have entered the economic cycle of the Union and are thus consumed, i.e. the process charged with VAT could.

Since the goods at issue in the main proceedings were still subject to the abovementioned proceedings at the time of their re-export, they cannot be considered an "import" within the meaning of Article 2 (1) (d), even though they were physically located in the territory of the Union VAT Directive can be assumed.

In the absence of an import at the relevant point in time in the main proceedings, the goods in question were consequently not subject to VAT in accordance with Article 2 (1) (d) of the VAT Directive.

The debtor of EUSt within the meaning of Section 3 (8) UStG is also the person whose sales are taxable in accordance with Section 1 (1) No. 4 UStG, but tax-free in accordance with Section 5 UStG (BFH judgment of March 21, 2007 VR 32/05, BStBl II 2008, 153; see also BMF dated February 1, 2008, BStBl I 2008, 295). With the judgment of January 29, 2015 (VR 5/14, BStBl II 2015, 567), the BFH confirmed the case law and decided that the debtor of the import sales tax within the meaning of Section 3 (8) UStG is the person who submits a customs declaration in his or her own name or in whose name a customs declaration is submitted. It does not matter that import sales tax was actually incurred.

The BFH rulings affect German mail order companies who supplied their customers in Germany via a mail order warehouse in a third country. For deliveries, some of which were exempted from EUSt according to Section 5 (2) No. 2 UStG in conjunction with Section 1 (1) EUStBV and Art. 27 Customs Exemption Regulation, the terms and conditions of the mail order company stipulated that the goods should be dispatched in the name and on account of customers have been carried out. As a result, the mail order companies assumed that the deliveries on which the consignments were based had been carried out in the third country in accordance with Section 3 (6) UStG.

The BFH has decided that the clause contained in the General Terms and Conditions according to § 3 AGBG has not become part of the contract and therefore does not establish sufficient power of representation vis-à-vis the customs administration. »On the basis of the general terms and conditions printed in a supplier's catalogs, an average buyer does not have to reckon with having to submit and submit a declaration with his order by which he authorized his contractual partner, the goods supplier, to the German customs authorities for him to submit the declaration that, contrary to the statutory provisions of Art. 77 UZK, it is not the declarant, but the customer, the purchaser of the goods, who is liable to the VAT ”(judgment of FG Münster of 14.1.2014, 15 K 2663/10 U, EFG 2014 , 688, LEXinform 5016213, legal versions confirmed by BFH judgment of January 29, 2015, VR 5/14, BStBl II 2015, 567). Since the goods were actually registered by the mail order companies, the location of the consignments was shifted to Germany via Section 3 (8) of the UStG. This also applies to small shipments for which no import sales tax is due. In this sense, the FG Munich also decided in a judgment of February 20, 2013 (3 K 2222/10, EFG 2013, 970, LEXinform 5014892). An appeal was filed against the judgment (Az.BFH: XI R 18/13, LEXinform 0929818). In a judgment of June 16, 2015 (XI R 18/13, BFH / NV 2015, 1607), the BFH overturned the judgment of the Munich Fiscal Court of February 20, 2013 for procedural reasons without deciding on the case itself.

In a further judgment of February 20, 2013 (3 K 3346/10, EFG 2013, 1437, LEXinform 5015165), the FG Munich had, in accordance with the case 3 K 2222/10 (see above), about the place of delivery in connection with the debt of the EUSt to decide.

If the general terms and conditions of goods in the media sector are predominantly sent to private individuals - not recognizable to the customer - via a company selling in Switzerland, a clause that is unusual in accordance with § 305c BGB and therefore not part of the contract, stating that the customer with his order, in who accepts the general terms and conditions of the GmbH, at the same time makes a declaration to the effect that he authorizes the GmbH to submit the customs declaration for import into Germany or to submit the declarations required for this purpose, remains - since the GmbH customers are ruled out with regard to the customs declaration - the liability for the import sales tax at the GmbH or the Swiss company and thus the place of delivery in accordance with Section 3 (8) UStG in Germany.

In a judgment of June 16, 2015 (XI R 17/13, BStBl II 2015, 1024), the BFH confirmed the legal provisions of the FG Munich. The local regulation of Section 3 (8) UStG is also applicable if no import sales tax is due because the import is exempt from sales tax. As a result, the FG rightly assumed that the customers were not the debtors of the import sales tax. This already follows from the fact that, according to the content of the General Terms and Conditions established by the FG, the GmbH did not act for the account of the customers (see BFH judgment of January 29, 2015, VR 5/14, BStBl II 2015, 567; see judgment of the FG Munich of February 20, 2013, 3 K 2222/10, EFG 2013, 970).

Example 1:

An entrepreneur (E1) from a third country (Switzerland) provides a domestic entrepreneur (E2) with a machine (not a means of transport) for temporary use. The third country entrepreneur (U1) brings the machine to Germany as agreed. The domestic entrepreneur (U2) pays the EUSt as agreed.

Solution 1:

The domestic entrepreneur (U2) is not entitled to deduct VAT as input tax, since the domestic entrepreneur does not have the power of disposal over the item. U2 pays the EUSt “in the name and on behalf” of the importer. In this case the represented debtor becomes the EUSt. The third country entrepreneur (U1) is entitled to input tax deduction in accordance with Section 15 (1) No. 2 UStG (see also Section 15.8 (9) UStAE). The rental service of U 1 is carried out in Germany in accordance with Section 3a (2) UStG and is therefore taxable and liable to pay in Germany. The remuneration of the EUSt as input tax is not possible in the input tax reimbursement procedure, since U1 has not only carried out sales for which the recipient of the service the Tax according to § 13b UStG owes. U1 also carries out an import in accordance with Section 1 (1) No. 4 UStG.

It concerns another service of an entrepreneur based abroad (§ 13b Abs. 2 Nr. 1 in conjunction with Abs. 7 UStG). According to Section 13b (5) sentence 1 UStG, the service recipient U2 owes the tax. U1 must issue an invoice in accordance with Section 14a (5) of the UStG and indicate the tax liability of the recipient of the service. The service recipient can deduct the tax as input tax in accordance with Section 15 (1) No. 4 UStG (→ tax liability of the service recipient).

Example 2:

An entrepreneur from a third country (Switzerland) sells a machine (not a means of transport) to a domestic entrepreneur and transports it domestically as agreed. The debtor of the EUSt is

  1. the domestic entrepreneur (delivery condition »untaxed and duty unpaid«) or
  2. the third country entrepreneur (delivery condition "duty paid and taxed").

Solution 2:

  1. When crossing the border, the third country entrepreneur submits the customs declaration in direct (openly declared) representation (“in the name and on behalf” of the importer). The represented - the domestic entrepreneur - becomes the debtor of the EUSt. The place of delivery is in the third country according to § 3 Abs. 6 UStG. The domestic entrepreneur has the power of disposal over the item at the time of import. He can deduct the EUSt as input tax according to § 15 Abs. 1 Nr. 2 UStG.
  2. When crossing the border, the third country entrepreneur submits the customs declaration as the declarant and thus becomes the debtor of the EUSt. The place of delivery is in Germany according to § 3 Abs. 8 UStG. It is assumed that the domestic entrepreneur does not have the power of disposal over the item at the time of import (see also Section 15.8 Paragraph 4, Paragraph 5 Clause 2 and Paragraph 6 UStAE). The supplier can deduct the EUSt as input tax in accordance with Section 15 (1) No. 2 UStG. Since the delivery is taxable and it is not a service within the meaning of Section 13b (1) UStG (→ tax liability of the service recipient), the service recipient is not a tax payer. The input tax (EUSt) cannot be reimbursed to the third country entrepreneur in the input tax refund procedure. The general taxation procedure must be carried out (see Section 18.12, Paragraph 1, Example 3 UStAE).

Note:

If the third country entrepreneur has the machine transported domestically by an independent freight forwarder and this freight forwarder registers the goods for free circulation under customs and tax law and pays the VAT, the declarant becomes the debtor of the VAT in accordance with Art. 77 (3) UZK. However, the declarant (freight forwarder) is not involved as the transferor or recipient of the power of disposal of the machine. The freight forwarder is therefore not entitled to deduct VAT as input tax. It must be checked to whom his actions as a representative can be assigned. In the case of correct processing, the attribution of the acting person is evident, since when acting as an indirect representative, the person represented is also named in the import duty notification.

For the determination of the location - § 3 Paragraph 6 or Paragraph 8 UStG - it is decisive whether the representative works for the supplier or for the recipient of the service. This representation should be based on suitable evidence (e.g. written assignment).

If evidence is provided that the third party is on behalf of

  • of the supplier has acted, the supplier is entitled to deduct the VAT as input tax (case of Section 3 (8) UStG);
  • of the recipient of the service has acted, the recipient of the service is entitled to deduct VAT as input tax (case of Section 3 (6) UStG).

S.a. Merkel et al., Deduction of import sales tax as input tax under III., UR 20/2019, 753.

6.2. Input tax deduction of import sales tax in transfer cases

If objects from a third country arrive in Germany for repair and maintenance purposes, the question of the VAT treatment of these objects in the context of "import" arises. The objects can be provided for the execution of a work service or for the execution of a work delivery.

If a foreign client leaves an object to an entrepreneur based in Germany to carry out a work (e.g. inward processing) or if the foreign client supplies an entrepreneur based in Germany with an object for the execution of a work, the import sales tax applicable to the import of the object can be deducted from domestic entrepreneurs are deducted if the item is returned to the third country after the work has been performed or the work has been delivered. The same procedure can be followed if the foreign client continues to deliver the item in Germany after the work has been performed or the work has been delivered and this delivery is not tax-free according to Section 4 No. 8 ff. UStG (Section 15.8, Paragraph 8 UStAE).

The surrender of objects by a foreign client for the execution of an inward processing contract can lead to the non-collection of import duties (Art. 223 UZK). The prerequisite for this is the authorization of the customs authorities for the use of inward processing according to Art. 211 (1) (a) UCC. For the authorization, there must, among other things, be proven economic necessity (Art. 211 (2) (a) UCC). Without the permit, import duties arise with the possibility of input tax deduction of import sales tax.

As already explained above, the entrepreneur must have the power of disposal over the item at the time of import (Section 15.8 (4) sentence 2 UStAE) in order to benefit from the input tax deduction within the meaning of Section 15 (1) sentence 1 No. 2 UStG . If the domestic contractor himself becomes the debtor of the EUSt, he would not have the opportunity to deduct the EUSt as input tax in accordance with § 15 Paragraph 1 Clause 1 No. 2 UStG, as he does not have the power of disposal over the imported goods. The simplification regulation of Section 15.8, Paragraph 8 of the UStAE applies here.

6.3. Record keeping

The record-keeping obligations for imports result from Section 22 (2) No. 6 UStG in conjunction with Section 64 UStDV.

If a delivery to the entrepreneur is effected in connection with an import, either the VAT - in particular in the cases of Section 3 (6) UStG - or the remuneration and the tax applicable thereon - in the cases of Section 3 (8) UStG - to record. The decisive factor is the amount of tax that the entrepreneur can deduct as input tax (Section 22.2, Paragraph 11 of the UStAE). When importing, it is sufficient if the VAT paid or, in the cases of Section 16 (2) sentence 4 UStG, is recorded and reference is made to a corresponding customs document (Section 64 UStDV).

The input tax deduction of the EUSt due to the import is excluded with an option for differential taxation (§ 25a Abs. 5 Satz 3 UStG). The non-deductible input tax is part of the purchase price for determining the assessment basis (Section 25a (3), sentences 3 and 4 UStG).

The prerequisite for claiming input tax deduction is documentary evidence in the form of an original customs document or an approved replacement document from the customs administration (Section 15.11, Paragraph 1, No. 2 UStAE). This documentary evidence can usually not be dispensed with even with microfilming. For the input tax deduction of EUSt in the case of incorrect information in the customs declaration, see OFD Karlsruhe of 12.12.2013 (S 7300 a, UR 2014, 242). According to Section 15.11, Paragraph 1, Clause 2, No. 2, Clause 2 of the UStAE, there are no concerns for imports that are processed using the ATLAS IT procedure; respectively.

The OFD Karlsruhe points out the reasons for equity (Section 15.11, Paragraph 7, Clause 2, No. 1 UStAE) if a freight forwarder inadvertently enters incorrect information about the customs declarant and / or recipient in the electronic customs declaration and, as a result, the tax assessment issued in the ATLAS IT process does not identify the actual customs party. For this purpose, the FG Düsseldorf decided that the registration for the transit procedure requires that the registration has been made at the same customs office. If a different customs office is generated as the customs office of departure after automated customs submission in the ATLAS system during the electronic declaration for onward transport in the transit procedure, this will invalidate the acceptance of the transit declaration. This has the consequence that the goods are withdrawn from customs supervision by unauthorized removal from the place of storage. Article 10 of the Customs Code is not to be interpreted in such a way that a violation of customs law rules out the assumption that the initiation of the transit procedure is ineffective due to serious and obvious errors within the meaning of Section 125 (1) AO (BFH decision of March 17, 2009, VII R 17/07 , BFH / NV 2009, 1053).

7. Tax exemption according to § 4 No. 3 letter a double letter. bb UStG

The tax exemption according to § 4 No. 3 letter a double letter. bb UStG (Art. 146 Paragraph 1 Letter e of the VAT Directive) comes into consideration in particular for the following other services (Section 4.3.3 Paragraph 1 UStAE):

  1. for cross-border freight transports and transports in international rail freight transport (see section 4.3.2 UStAE) to the first destination in the Community;
  2. for goods transports that are carried out after previous transport according to No. 1 to a further destination in the Community, e.g. transports on the basis of a subsequent order or transports by haulage companies from the airport, inland port or train station to the recipient;
  3. for the handling and storage of imported objects;
  4. for customary ancillary services that occur in the cross-border carriage of goods or in the services specified in numbers 2 and 3, e.g. weighing, measuring, taking samples or registering for clearance for free circulation;
  5. for the provision of the services specified in numbers 1 to 4;
  6. for brokerage services for which the tax exemption according to § 4 No. 5 UStG does not come into consideration, e.g. for the brokerage of liable deliveries that are carried out from an import warehouse in Germany.

The tax exemption does not require that the services are provided to a foreign client. Services that are provided to a contractual partner of the recipient or the exporter of the goods in question are not covered by the tax exemption.

Example 3:

Entrepreneur A undertakes to ensure the transit freight transport from A to B. A transfers the actual execution of this goods transport to company X. The transport is carried out with vehicles that belong to company A and are rented to X. Company A acts as a carrier towards the sender of the goods.When providing the transport services, company X takes over the steering, repairs and refueling of the vehicles as well as customs formalities at the border crossing points, monitoring the freight, handing it over to the recipient and the necessary loading and unloading work.

X is based on the assumption that the services provided are related to the transit and are therefore tax-free according to Art. 146 (1) (e) of the VAT Directive.

Solution 3:

The facts and the solution are based on the ECJ ruling of June 29, 2017 (C – 288/16, LEXinform 5215024, UR 15/2017, 599).

It follows from the wording and purpose of Article 146 (1) (e) of the VAT Directive that this provision is to be interpreted as meaning that a direct connection does not only require that the services in question contribute to the actual implementation of an export or import according to their subject matter , but also that these services are provided directly to the exporter, importer or recipient of the goods to which this provision relates, as the case may be.

In the example, the services provided by X are necessary to actually carry out the export in question in the example - but this also applies to the import. However, these services are not provided directly to the recipient or the exporter of the goods in question, but to a contractual partner of X, namely A. Therefore, the services provided by company X do not fall within the scope of the tax exemption provided for in Article 146 (1) (e) of the VAT Directive.

The BMF letter of July 22, 2005 (BStBl I 2005, 834) provides evidence of the tax exemption for services that relate directly to import objects.

To the tax exemption of § 4 No. 3 letter a double letter. bb UStG, the Saxon FG ruled on July 2nd, 2008 (4 K 393/06, LEXinform 5006864, rkr.) as follows: If vehicles are imported into Germany from a third country and are used by an entrepreneur after the vehicles have been cleared for the free Transport and after reaching the first destination within the meaning of Section 11 Paragraph 3 No. 3 UStG service and logistics services (e.g. unloading from the train, washing, depreservation, storage and handover inspection) as well as repair and improvement work (in particular painting work) are not carried out according to Section 4 No. 3 letter a double letter. bb UStG VAT-free. Substantive legal requirement for the tax exemption according to § 4 No. 3 letter a double letter. bb UStG is that the supplier providing evidence proves that the costs for the service are included in the assessment basis for the import. The relevant customs documents - in particular a confirmation issued by the customs office based on the prescribed sample upon request - or other unambiguous documents can be considered as evidence of this evidence.

The assessment basis for import sales tax according to Section 11 (3) No. 3 UStG includes the costs incurred for the item up to the first destination of the item in the importing member state. All of the following services are to be recorded under VAT law. Since the Stpfl. the service and logistics services carried out as well as the repair and improvement work were carried out after the vehicles were cleared for free circulation and after reaching the first destination within the meaning of Section 11 (3) No. 3 UStG, the import was already completed at this point in time. The costs are therefore not related to the import and, according to the aforementioned standards, are not part of the tax base under import sales tax law. As a result, the costs are to be included in sales tax as domestic services.

8. Tax exemption according to § 4 No. 4b UStG

According to § 4 No. 4b UStG, the delivery preceding an import (import delivery) is exempt from VAT if the customer or his agent imports the item. The tax exemption also applies to deliveries prior to the import delivery.

The tax exemption applies to all deliveries of non-Community goods (see BMF of January 28, 2004, BStBl I 2004, 242, margin nos. 58-63) that result in a non-collection procedure under customs law (cf. BMF of January 28, 2004, loc. Cit., Margin no. 64 -70).

The importation of items that are subject to a customs suspension procedure is subject to taxation; this ensures that such items are subject to sales tax. The import sales tax is levied when the item is released for free circulation under customs and tax law.

The tax exemption according to § 4 No. 4b UStG applies to all deliveries of non-Community goods that are in a customs non-collection procedure. The prerequisite for this is that the buyer of the delivery or a subsequent buyer or an agent of these imports the delivery item. The transfer of the item into free circulation under customs and tax law must be attributable to the customer. The application of the tax exemption is independent of whether the subsequent import is taxable or tax-free according to § 5 UStG.

Example 4:

Entrepreneur A transports third-country items from Switzerland to the community area. A stores them untaxed in a customs warehouse. The customs warehouse is located in Stuttgart. A delivers these items to entrepreneur B from Cottbus. The handover takes place by handing out a warehouse receipt without the goods leaving the customs warehouse. B delivers these items to entrepreneur C in Berlin. C releases the items for free circulation under customs and tax law.

Solution 4:

The place of deliveries from A to B and from B to C is in Stuttgart (Section 3 Paragraph 7 Clause 1 and Paragraph 6 Clause 1 UStG); the deliveries are taxable. Both deliveries are carried out before importation and are exempt from sales tax according to Section 4 No. 4b UStG.

Example 5:

Situation as in example 4, but B releases the items for free circulation under customs and tax law and conveys them to C.

Solution 5:

The delivery from A to B is tax-free as a delivery before import according to § 4 No. 4b UStG. The delivery from B to C is liable. The exemption of § 4 No. 4b UStG cannot be applied because B imports the item as the supplier and not C as the buyer of this delivery.

The exemption of § 4 No. 4b UStG applies regardless of where the customer is based and whether he is entitled to input tax deduction. It also applies if the customer is a non-entrepreneur.

If a non-Community goods, which are subject to a suspension procedure under customs law, are exported in connection with a delivery from within Germany to a third country area, this delivery is not tax-free according to § 4 No. 4b UStG. The delivery can be tax-free under the conditions of § 6 UStG.

If a non-Community goods that are subject to a suspension procedure under customs law are transported or shipped in connection with a delivery from within Germany to the rest of the Community, this delivery is not subject to Section 4 No. 4b UStG, but rather under the conditions of Section 4 No. 1 Letter b, § 6a UStG as intra-community delivery tax-free (→ intra-community delivery).

Example 6:

Entrepreneur A imported third country goods from Russia. He stores them in a customs warehouse in Frankfurt / Oder. A delivers some of the items to entrepreneur B in Copenhagen (Denmark). These objects are transported from the customs warehouse to Copenhagen as part of the customs »transit procedure« (non-collection procedure, BMF dated January 28, 2004, BStBl I 2004, 242, margin numbers 64 and 65). B later transfers the delivery items there for free circulation under customs and tax law.

Solution 6:

The delivery of A to B in Copenhagen is taxable domestically (place: § 3 Abs. 6 Satz 1 UStG). It is tax-free as an intra-community delivery according to § 4 No. 1 letter b, § 6a UStG.

B carries out an intra-Community acquisition in Denmark (Art. 3 VAT Directive; cf. § 1a UStG). The taxation of intra-Community acquisitions is not linked to the customs status of the goods. In addition, imports through B in Denmark are subject to VAT (Art. 30 of the VAT Directive; cf. § 1 Paragraph 1 No. 4 UStG).

The entrepreneur has to prove the requirements for the tax exemption according to § 4 No. 4b UStG. This proof must be clearly and easily verifiable.

If a non-Community good that is in a suspension procedure is delivered, the supplying entrepreneur must be in possession of a document stating that these goods are in a suspension procedure. If, for example, the supplier has stored the non-Community goods in a customs warehouse, a certificate from the warehouse keeper showing the storage is sufficient (warehouse receipt).

If the buyer of the non-community goods delivered by the entrepreneur is also the one who releases these goods for free circulation under customs and tax law, the buyer can give his supplier a corresponding written confirmation.

Example 7:

Entrepreneur A delivers an item from the USA to Entrepreneur B in Germany (dispatch by A). As soon as the item arrives in the Community, B places it in a customs warehousing procedure. B stores the goods at warehouse keeper L in Germany. Then the item is sold from B to C, from C to D and from D to E on the condition "duty unpaid and untaxed". E asks L to release the goods for free circulation under customs and tax law. E is the debtor of the import sales tax.

Solution 7:

The delivery of A to B is not taxable in Germany. The place of delivery is in the USA.

The deliveries from B to C and from C to D in the customs warehouse are tax-free according to § 4 No. 4b UStG. B and C can provide evidence of the tax exemption by proving that the goods were not imported through them, but only at a later point in time. This can be done by presenting the warehouse receipt or a copy.

The delivery of D to E is also tax-free according to § 4 No. 4b UStG. D receives proof of import taxation through a corresponding confirmation from L.

Example 8 (chain transaction and import):

The German entrepreneur C orders an item from the German entrepreneur B. This in turn orders the item from entrepreneur A from Switzerland.

  1. A conveys the delivery item directly to C.
    1. A or his agent releases the goods for free circulation under customs and tax law and owes the EUSt.
    2. B releases the goods for free circulation under customs and tax law and owes the VAT.
    3. C releases the goods for free circulation under customs and tax law and owes the VAT.
  2. C picks up the item from A and transports it to Germany (collection case).
    1. B releases the goods for free circulation under customs and tax law and owes the VAT.
    2. C releases the goods for free circulation under customs and tax law and owes the VAT.

    A is not involved in the transport of the item from Switzerland to Germany and, as agreed, is not responsible for the importation.

Solution 8:

To 1: The moving delivery is the delivery from A to B (Section 3.14, Paragraph 8, Clause 1 UStAE). In principle, the location is determined in accordance with Section 3 (6) sentence 5 in conjunction with sentence 1 UStG and is located in Switzerland (at the start of the transport).

  1. Since the supplier A is the debtor of the EUSt, the place of delivery A to B will be relocated to Germany in accordance with Section 3 (8) UStG. The delivery of A to B is taxable in Germany and subject to tax. A has the power of disposal at the time of import and is entitled to deduct VAT as input tax, since the item has been imported for his company (Section 15 (1) sentence 1 no. 2 UStG; Section 3.13 Example 2 UStAE). Delivery B to C is the dormant delivery. According to Section 3 Paragraph 7 Clause 2 No. 2 UStG, the place is in Germany (end of transport); as this delivery follows the transport delivery. The delivery from B to C is not tax-free according to § 4 No. 4b UStG, as it follows the import by A within the supply chain.
  2. Since the buyer of the delivery is debtor of the EUSt, a relocation of the place of delivery according to § 3 Para. 8 UStG is out of the question, since A as the supplier of the transport delivery is not also debtor of the EUSt. According to Section 3 (6) sentence 5 in conjunction with sentence 1 UStG, the place of delivery is in Switzerland (start of transport). The delivery of A is not taxable. At the time of release for free circulation under customs and tax law, B has the power of disposal over the imported item because the delivery of A to B is already in Switzerland and its delivery to C only when the goods are handed over to C is deemed to have been carried out. The VAT incurred can therefore be deducted from B as input tax.

    The delivery from B to C is the dormant delivery. According to Section 3 Paragraph 7 Clause 2 No. 2 UStG, the place is in Germany (end of transport); as this delivery follows the transport delivery. The delivery from B to C is not tax-free according to § 4 No. 4b UStG, as it follows the import by B within the supply chain.

  3. See solution 1 b). The transport delivery from A to B is carried out at the start of the transport in Switzerland (Section 3 (6) sentence 5 in conjunction with sentence 1 UStG). The delivery of the A is subject to German VAT when it is imported into Germany. A relocation of the place of delivery according to § 3 Abs. 8 UStG does not take place, because A is not the debtor of the EUSt (but C). The second delivery (B to C) is the dormant delivery. It applies in accordance with Section 3 Paragraph 7 Clause 2 No. 2 UStG executed in Germany (end of the transport), as it follows the transport. B carries out a tax-free delivery according to § 4 No. 4b UStG, since its delivery in the supply chain precedes the import by buyer C. Since the EUSt can be deducted as input tax.

Re 2: The moving delivery is delivery B to C (Section 3.14, Paragraph 8, Clause 2 UStAE). In principle, the location is determined in accordance with Section 3 (6) sentence 5 in conjunction with sentence 1 UStG and is located in Switzerland (at the start of the transport).

  1. Since the supplier B is the debtor of the EUSt, the place of delivery will be relocated to Germany in accordance with Section 3 (8) UStG. Delivery B to C is taxable in Germany and subject to tax. B has the power of disposal at the time of import and is entitled to deduct VAT as input tax. Delivery A to B is the dormant delivery. According to Section 3 Paragraph 7 Clause 2 No. 1 UStG, the place of delivery is in Switzerland (start of the transport), as it precedes the transport delivery. The delivery is not taxable. For this reason, a tax exemption according to § 4 No. 4b UStG is out of the question.
  2. See solution 2 a). The place of delivery B to C is in Switzerland (start of transport) in accordance with Section 3 (6) sentence 5 in conjunction with sentence 1 UStG. A relocation of the place of delivery in accordance with Section 3 (8) UStG is out of the question, as B is not the debtor of the EUSt (but C). Delivery B to C is not taxable. C has the power of disposal at the time of import and is entitled to deduct VAT as input tax. Delivery A to B is the dormant delivery (Section 3 (7) sentence 2 No. 1 UStG; see solution 2 a). The place of delivery is in Switzerland.

See also the examples in Section 3.14, Paragraphs 14 to 17 UStAE, the contribution from Merkel and others, deduction of import sales tax as input tax under IV.7, UR 20/2019, 753 and → chain transaction.

9. Tax exemptions on import

Tax free according to § 5 Abs. 1 UStG (Art. 143 UStSystRL)

  • the import of certain items (Section 5 (1) No. 1 and 2 UStG),
  • the import in the event of subsequent intra-Community delivery (Section 5 (1) No. 3 UStG),
  • the import in connection with the storage in a sales tax warehouse (§ 5 Abs. 1 Nr. 4 und 5 UStG) as well as
  • the import of gas and electricity (Section 5 (1) No. 6 UStG).

For tax exemption for imports and subsequent intra-Community deliveries (Section 5 Paragraph 1 No. 3 UStG or Art. 143 Paragraph 1 Letter d of the VAT Directive) as well as for refusing the tax exemption for imports due to subsequent VAT evasion by the purchaser with regard to the imported items The ECJ ruled on February 14, 2019 (C-531/17, UR 2019, 389, LEXinform 0651582) in an Austrian request for a preliminary ruling.

Decision matter C-531/17:

B then resells the goods subject to the obligation. However, B did not declare this sale, but rather declared a tax-free intra-Community delivery to the forwarder V previously engaged for the customs declaration. Such a delivery never took place.

B is responsible for tax evasion in Bulgaria. Spedition V was in no way involved in this VAT fraud.

Reasons for the decision:

According to Art. 143 (1) (d) of the VAT Directive, the importation of goods from a third country into a Member State is tax-free if the goods are sent or transported from this Member State to another Member State. The delivery of this item to the other member state must be effected by the importer designated or recognized as tax debtor in accordance with Art. 201 of the VAT Directive and must be exempted in accordance with Art. 138 of the VAT Directive (§ 4 No. 1 letter b in conjunction with § 6a UStG).

The declarant is the debtor of the EUSt. In the case of indirect representation, the person on whose behalf the customs declaration is submitted is also the customs debtor (joint and several debtor; Art. 77 (3) UCC).

According to Art. 138 Paragraph 2 Letter c of the VAT Directive, intra-Community movement is equivalent to an intra-Community delivery (Section 6a Paragraph 2 UStG).

The Austrian Federal Supreme Court would like to know whether Art. 143 para. 1 lit.d of the VAT Directive (§ 5 Paragraph 1 No. 3 UStG) are to be interpreted as meaning that the import sales tax exemption standardized therein is to be denied to the importer who has been designated or recognized as tax debtor in accordance with Art. 201 of this Directive if the recipient receives the subsequent importation intra-Community shipment commits tax evasion in the event of a later transaction that is unrelated to the shipment.

The exemption from import sales tax depends on the importer then carrying out an intra-community delivery, which itself is tax-exempt according to Art. 138 VAT Directive (§ 6a UStG), and therefore depends on compliance with the material requirements set out in this article. This also applies if the delivery of objects, as in the present case, consists of their transfer to another member state (ECJ C-531/17, margin no. 31, 33).

The ECJ points in margin no. 34 of his decision expressly points out that the intra-Community shipments meet the requirements of Article 138 of the VAT Directive to which Article 143 (1) (d) of the VAT Directive refer. In the main proceedings, the import with subsequent intra-Community transfers, on the one hand, and the intra-Community delivery to which the tax evasion related, on the other hand, are to be regarded as transactions that are independent of one another.

Art. 143 (1) (d) of the VAT Directive contain two exemptions, namely, firstly, an exemption from VAT, which is normally owed on import according to Art. 201 of the VAT Directive, and secondly, an exemption based on the subsequent intra-Community delivery or shipment.

Since it has been proven that this tax evasion does not affect the shipment, on which the exemption from import sales tax according to Art. 143 (1) (d) of the VAT Directive depends, this exemption cannot be granted to the importer who has been designated or recognized as liable for tax under Art will be refused if there is no evidence that the importer knew or should have known that this post-import delivery was involved in a tax evasion committed by the Bulgarian recipients.

Note:

With the judgment of November 14th, 2017 (11 K 1102/15, LEXinform 5020877), the FG Baden-Württemberg decided that legally established import sales tax is to be waived if and to the extent that the taxpayer. proves that he immediately used goods imported into Germany for an intra-Community delivery. With regard to the waiver of import sales tax, in cases in which an import within the meaning of Section 1 (1) No. 4 UStG is to be assumed in Germany, the provision of Art. 116 UZK shall apply accordingly via Section 5 (3) UStG and Section 14 EUStBV.

The revision procedure VII R 4/18 was discontinued by withdrawing the revision (see FG Baden-Württemberg 11 K 1102/15 - juris).

Example 9:

Entrepreneur A delivers paper rolls from the third country to Entrepreneur B (dispatch by A). As soon as the paper rolls arrive in the community, B will release them for free circulation in Germany on 10.1.08. B intends to store the paper rolls in a sales tax warehouse of warehouse owner L in Hamburg for sales tax purposes. However, there is no storage because B finds a buyer C before storage. At the request of the C, the paper rolls will be sent directly to its production hall in Düsseldorf on January 16, 2008.

Solution 9:

See also example 31 of the BMF letter of January 28, 2004 (BStBl I 2004, 242).

The import of the paper rolls is tax-free according to § 5 Abs. 1 Nr. 4 UStG, since B intended to store the paper rolls in a sales tax warehouse.

The delivery from A to B is not taxable in Germany. The place of delivery is in the third country area.

The delivery of B to C is liable to tax, since the delivery item is not in a sales tax warehouse at the time of delivery and there is also no delivery to a sales tax warehouse.

According to § 5 Abs. 2 UStG, among other things, must be observed

  • the EUSt-Exemption Regulation (EUStBV),
  • the Entry Free Allowance Ordinance (EF-VO) and
  • the Small Consignment Import Quantity Ordinance (KF-VO).

With a final judgment of March 18, 2013 (11 K 2960/12, LEXinform 5014935), the FG Baden-Württemberg decided that the import of a used vehicle should not be considered as personal luggage within the scope of the so-called travel allowance from the collection of import duties (import sales tax and customs) is exempt.

In the case of dispute, the plaintiff had bought a used car in Switzerland for a good € 250 and then registered it for free circulation with the customs authorities in Switzerland. He was of the opinion that he had brought the vehicle into his personal luggage as part of travel and that import duties of up to € 300 should not be levied for such souvenirs. When entering the country, he took the car with him as travel equipment. The vehicle was also intended for his personal use because it allowed him to get from Switzerland to Germany. The customs office had the plaintiff nonetheless to import duties amounting to 77.94 € are used.

The FG agreed with the customs office and dismissed the complaint. A motor vehicle is a means of transport. As such, due to its size, it should not be regarded as a piece of luggage within the meaning of the exemption. The acquisition of a used car does not give any reason to forego the collection of import duties in order to facilitate customs clearance. Section 2 (1) No. 5 EF-VO does not contain a general insignificance clause, so that import sales tax and customs must be levied on a vehicle imported from a third country even if its value is less than € 300 (see also communication from the FG Baden-Württemberg of May 31, 2013, LEXinform 0439743).

Under the conditions of § 5 Abs. 3 UStG the EUSt can be waived or reimbursed.

10. Tax base for imports

§ 11 UStG regulates the assessment basis for the import sales tax to be levied. According to Section 11 (1) of the UStG, the customs value is decisive (Articles 69 to 74 of the UZK of October 9, 2013).

Note:

The European Union Customs Code was adopted on October 9, 2013 as Regulation (EU) No. 952/2013 of the European Parliament and of the Council. When it came into force on October 30, 2013, Regulation (EC) No. 450/2008 (Modernized Customs Code) (OJ L 145 of 4.6.2008, p. 1) was repealed.

Its substantive legal provisions will only apply from 1 May 2016 (correction of Regulation (EU) No. 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code), if the relevant legal acts of the Commission (delegated Acts and implementing acts) have been adopted and entered into force.

The customs value of imported goods is the transaction value (Art. 70 of the UCC), ie the price actually paid or to be paid for the goods when they are sold for export to the customs territory of the Community, if necessary after adjustment in accordance with Art. 71 and 72 UCC ( Section 11 Paragraphs 3 and 4 UStG).

The EUSt assessment base can be determined as follows (see Klüver in Weimann / Lang, sales tax - national and international, § 11, 5. A.):

Customs value of the delivery item
+Import duties, taxes and other charges that are owed for the delivery item in third countries
+Customs duties and levies on the delivery item as well as other consumption taxes apart from import sales tax that arose at the time the import sales tax was incurred on the occasion of the import; the taxes must have arisen in order to be added to the assessment base (see also BFH judgment of May 22, 2012, VII R 50/11, BFH / NV 2012, 1401, LEXinform 5013714 on the inclusion of tobacco tax in the assessment base of EUSt)
+the costs incurred for the delivery item for brokerage and transport as well as other other services up to the first destination in the community area
+the costs incurred for the delivery item for brokerage and transport as well as other other services up to a further destination in the community, if this further destination has already been determined at the time the import sales tax arises
=Assessment base for the EUSt

In order to determine the assessment basis for the EUSt when importing goods subject to excise duty via another member state, the FG Munich decided in a judgment of May 28, 2009 (14 K 335/07, LEXinform 5008651, rkr.) That goods subject to excise duty are imported into the customs area the Community does not incur the national consumption tax via another Member State until the goods are brought out of this into the German tax area. The national consumption tax must therefore not be taken into account when determining the assessment base for the EUSt.

11. No interest according to § 233a AO

As an import tax, the EUSt is subject to the correspondingly applicable regulations for customs duties, which is why a difference resulting from the determination of EUSt is not subject to interest according to § 233a AO (BFH judgment of 23.9.2009, VII R 44/08, BStBl II 2010, 334) .

12. Bibliography

Klüver in Weimann / Lang, sales tax - national and international § 5, 5th edition 2018; L´habitant, Cross-border movement of goods by various agents - case study on import sales tax, UStB 7/2017, 202; Harksen et al., Input tax deduction of import sales tax in repair cases - the simplification of section 15.8 para. 8 UStAE in practice, UStB 4/2016, 125; Merkel et al., Deduction of import sales tax as input tax, UR 20 (2019, 753.

13. Related Lexicon Articles

→ input tax deduction

 

Note to editors:© Schäffer-Poeschel Verlag, Stuttgart. Josef Schneider and others, Finance and Taxes Volume 16, Lexicon of Tax Law, © Schäffer-Poeschel Verlag for Economics, Taxes, Law, Stuttgart.