Place of delivery in a consignment warehouse

    UStG § 1 Abs. 1 Nr. 1, § 3 Abs. 6, Abs. 7, § 17 Abs. 2 Nr. 1

    1.For the determination of destination according to § 3 Abs. 6 UStG, the customer must already at The beginning of the shipment to be determined. A shipment delivery can then also if the delivery item is short after the start of the shipment Time is stored in a distribution warehouse.
    2.Accompany the participants in a power exchange lawlessly the Consideration without VAT, is the agreed amount in consideration and on it apportioning sales tax.

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    On the appeal of the plaintiff, the judgment of the FG Dusseldorf v. 6.11.2015 - 1 K 1983/13 U, DStre 2016, 1249, the defendant's decision v. 13.5.2013, the VAT assessments 2005 to 2010 v. 6.1.2012 and the respective ones Interest notices 2005 to 2009 canceled. The sales tax is changed by the VAT assessment 2005 to 2010 of the defendant v. 6.1.2012 set to the amount which results when the amounts paid by the asylum seekers are ) Basis of assessment and VAT. The interest rates will be amending the decisions 2005 to 2009 v. 6.1.2012 insofar reduced as interest only be levied on the reduced sales tax. The calculation of the tax and the interest will be the Defendant transferred. Moreover, the application is dismissed. The cost of the whole The claimants have to pay 4/5 and the defendant 1/5. facts

    1I. It is disputed between the parties, whether executed via a so-called consignment warehouse Deliveries of the applicant, appellant and resident of the Netherlands Appellants (plaintiff) to the domiciled resident in the Federal Republic Germany (Germany) are taxable and taxable or in the Netherlands taxable but exempt intra-Community supplies.

    2The applicant is a limited liability company incorporated under Netherlands law (B.V. Netherlands. The object of their enterprise is the design, the production and the Sales of computers, trading in computers, electronic products, accessories and Peripherals and the provision of services in this context.
    3The applicant is a business partner of the person being invited, a wholesaler of information and communication technology based in Germany. In the years of dispute (2005 to 2010) the plaintiff delivered goods (screens) to the person invited. The goods were thereby from the Applicant from the Netherlands to a place of business on the premises of the applicant Consignment warehouse spent. The basis was one between the plaintiff and the person being invited "Consignment Distribution Agreement" (CDA) v. 04/14/2003. The invited was according to the CDA, the consignment stock delivered by the applicant in one separate warehouse operated by it, to which only the invited had access. The plaintiff was only entitled, after reasonable advance notice, to send the warehouse to Purposes of an inventory. The invited was entitled to Consignment stock to be sold to its customers in the ordinary course of business. The plaintiff remained the owner of the consignment stock until the person invited by the Plaintiff - once a week - a list of the previous week to her customers sold consignment stock. The selling price of the applicant to the Beigelade was on the day on which the Beigeladene the consignment stock resold, determined. The consignment stock was taken over by the invited person at the Applicant on the basis of the jointly agreed storage policy. The Plaintiff was obliged to consignment stock at least three weeks in the warehouse too left; At the end of this period, the person invited was entitled to the entire stock or return part of it to the claimant.
    4 The applicant did not treat the divestments to those invited as being in Germany taxable and declared them in the Netherlands as tax-free intra-Community Deliveries. Correspondingly, the invited party explained intra-Community acquisitions in corresponding amount in Germany and drew the associated sales tax as Input tax.

    5The defendant, appellants and appellants did not follow suit dealt with in the amended sales tax assessment 2005 to 2010 v. 6.1.2012 the Supplies of the plaintiff to the Beigeladene as taxable and taxable and sat Repayment interest. The appeal was unsuccessful.
    6 The action was successful in so far as the FA based its assessment on that of the applicant The loaded deliveries did not involve the sales tax included in the amount received was reduced. For the rest, the FG informed the action its judgment published in EFG 2016, 234 = DStRE 2016, 1249 as unfounded.
    7In so far as the applicant separately opposes the fixing of additional interest, that is the action was unfounded even in the absence of an objection filed in due time.
    The remainder of the action is, moreover, essentially unfounded because the supplies are delivered at the place of disputed consignment warehouse in Germany. In which Transporting the goods from the Netherlands to the German consignment warehouse was the order of the day not to a transport or dispatch to the customer within the meaning of § 3 Abs. 6 S. 1 UStG in the in the current version, but in the Netherlands taxable, but exempt, intra-Community transfers with an in Germany taxable and taxable and entitled to deduct input tax intra-Community acquisition of the persons invited. Only with the sale the goods in the consignment warehouse are one by the person invited to their customers simultaneous delivery of the applicant to the person being invited at the consignment warehouse.
    9The transfer of goods to a consignment store will only lead to one at the place of the Beginning of carriage or dispatch delivery to the customer, if the Buyer the goods at the time of commencement of carriage or shipment in the Consignment stock already binding.
    10The action is, however, to the extent of the sums received by the applicant VAT payable, because the basis of assessment is that collected Net price less VAT. Because of the error about the tax liability of Deliveries were the agreed remuneration partly uncollectible within the meaning of § 17 para. 2 No. 1 UStG become.
    11 Both the applicant and the FA have lodged an appeal against this.
    12 The applicant submits that Paragraph 3 (6) of the UStG does indeed apply to a specific delivery from which Wording, the systematic position, the history and purpose of the norm However, it appears that the application of the place of delivery is not based on the date of delivery Delivery arrive; this could also be used for forwarding or forwarding be downstream. For the actual linking of the delivery with the carriage or Sending it is sufficient that the object of delivery with the object of Transport or consignment is identical. A temporal link of promotion or Dispatch on the one hand and delivery on the other hand does not provide for § 3 paragraph 6 UStG. Whether and to Rather, the date of delivery is governed by § 3 (1) UStG.

    13This also corresponds to the meaning and purpose of § 3 (6) UStG, which consists in the Taxation of cross-border supplies of goods to simplify. By the uniform definition of a place of delivery for all transport and Dispatch deliveries will enable the entrepreneur to pay the VAT Settlement regardless of the country of destination in his home country.
    14 Even if you think of the need for one at the time of transportation or sending out already executed sales transaction, this condition is in the present case. Because through the consignment agreement, the invited person is qualified been, as an owner, to dispose freely of the consignment goods. The invited have borne the risk of sinking or damaging the consignment goods and Consequently, with the transfer of the goods to the consignment warehouse, the right to dispose of them obtained.
    15 The applicant claims that the Court should: (1) partially annul the FG judgment; VAT assessments 2005 to 2010 v. 6.1.2012 and the opposition decision v. 13.5.2013 to change with the proviso that the VAT for ... € for 2005, ... € for 2006, ... € for 2007, ... € for 2008, ... € for 2009 and ... is reduced for 2010 and the fixing of additional interest is suspended; (2) to reject the revision of the FA.
    16The FA requested that the FG judgment be set aside and that the action be dismissed.
    17FG had wrongly assumed that VAT was irrecoverable.


    18ıı. The appellant's appeal is well founded; it leads to the cancellation of the preliminary decision and to change the interest notifications, as far as the FA also charged interest on the difference which is calculated on the basis of VAT Basis of assessment of the full amounts paid by the person invited and the VAT included therein reduces the basis of assessment (§ 126 (3) P. 1 No. 1 FGO) - to 3. -. For the rest, the appellant's appeal is unfounded because the FG too Has rightly held that the disputed transactions of the applicant in the domestic sales tax subject to (to 1.).
    19The revision of the IA is unfounded and is therefore rejected (§ 126 (2) FGO). As a result, the FG has rightly decided that the tax base by The deduction of VAT from the amounts paid by the person being invited to be stated (to 2.).
    After the place of performance is the controllability
    201. The applicant 's disputed transactions are taxable domestically because of the location of the Deliveries of the plaintiff to the person invited pursuant to § 3 (7) sentence 1 UStG and not according to § 3 Paragraph 6 UStG. Since the sales tax law is no special right for consignment stock knows the destination of the place of performance according to the general principles (Böttner UR 2010, 299, 302).
    Condition of § 3 para. 6 sentence 1 UStG 21a) If the object of delivery is supplied by the supplier, the purchaser or one of the Supplier or third party commissioned or sent by the customer, the delivery shall apply according to § 3 Abs. 6 S. 1 UStG there executed, where the transport or dispatch to the Customer or on behalf of a third party. Will be the subject of delivery not transported or shipped, the delivery will be carried out where the item is destined for Time of obtaining the power of disposition is located (§ 3 Abs. 7 S. 1 UStG).
    22b) Under EU law, those rules are based on Article 8 (1) (a) and (b) of the Sixth Directive 77/388 / EEC (from 1.1.2007 Art. 31, 32 VAT Directive). Determination of the customer at the time of dispatch.

    23c) Section 3 (6) UStG requires a shipment to the customer. This must therefore in Date of dispatch (for more detailed explanation see BFH v. 20.10.2016 - V R 31/15, DStR 2017, 147 mAnm Heuermann, intended for official publication; v. 6.12.2007 - V R 24/05, BFHE 219, 476, BStBl. II 2009, 490 = DStRE 2008, 372 marginal. 44; v. 30.7.2008 - XI R 67/07, BFHE 222, 138, BStBl. II 2009, 552 = DStR 2008, 2160 mAnm CH Rn. 13; probably also v. 25.2.2015 - XI R 15/14, BFHE 249, 343 = DStR 2015, 748 marg. 56f .; - Birkenfeld in Birkenfeld / Wäger, The Large Sales Tax Manual I, marg. 864; Flicker in Schwarz / Widmann / Radeisen, UStG, Section 3 (6) marg. 48; Hahn in Weymüller, UStG, 2015, § 3 Rn. 332.1, 341, 342; Heuermann in Soelch / Ringleb, UStG, § 3 marg. 459, 474; Lippross, Sales tax, 188; Michl in Offerhaus / Söhn / Lange, UStG, § 3 marg. 118; Nieskens in Rau / Dürrwächter, UStG, § 3 marg. 3430 ff .; Schilcher in Hartmann / Metzenmacher, § 3 para. 6 Rn. 40; also section 1a.2 para. 6, section 3.1 para. 3 page 5 and section 3.12 para. 3 page 7 UStAE; aa Fritsch in Reiss / Kraeusel / Langer, UStG, § 3 marg. 604 ff .; Tear in Tear / Kraeusel / Langer, UStG, § 13 marg. 17 ff .; Stadie, UStG, 3rd ed., § 3 marginal. 124 ff .; Horse mackerel in Küffner / Stöcker / Zugmaier, UStG, § 3 marg. 587 ff .; Frye UR 2013, 889; Hummel UR 2007, 757). Decisive for the determination of the customer is a binding purchase contract

    2 4d) In accordance with those principles, the place of supply at issue was at the place of Consignment warehouse in the country, because when the goods are shipped, the customer is not it was clear. Only with the removal of the goods from the consignment warehouse was sure that the The loaded items would be kept and ready to pay the purchase price paid. According to the applicant and the person being invited to the CDA Arrangements became a binding purchase contract between the contracting parties only after the Storage of goods closed, because the invited not obliged from the outset was to remove the goods brought by the applicant into the warehouse. The invited was also obliged to pay only after removal of the goods from the consignment warehouse (see also BFH in BFHE 219, 476, BStBl II II 2009, 490 = DStRE 2008, 372 marginal 47).
    If a binding contract has been concluded after storage, the warehouse is the Place of goods moving delivery
    Storage in the consignment warehouse of the person being invited therefore did not just increase a brief interruption of the shipment to the already established one Customers (see BFH v. 20.10.2016 - V R 31/15, DStR 2017, 147 mAnm Heuermann; ECJ X v. 18.11.2010 - C-84/09, EU: C: 2010: 693 = BeckRS 2010, 28711 Rn. 33).
    262. In the result, the FG also rightly held that the applicant was the basis for the decision The basis of assessment to be laid down by deducting the value added tax from that of The amount of sums paid must be calculated.

    Taking out the VAT
    However, this is not - in contrast to the view advocated by the FG - not one (partially) uncollectible remuneration in accordance with § 17 (2) No. 1 UStG. For transactions that a taxpayer does not specify in his tax returns - even at Legal error about their controllability -, the sales tax arises as well as duly declared turnover (BFH v. 20.1.1997 - V R 28/95, BFHE 183, 353, BStBl. II 1997, 716 = DStRE 1997, 1022 marg. 24). Even with a mistake in the law about the controllability of Deliveries and other services are the sales in accordance with § 10 para. 1 p. 1 UStG according to the fee. Remuneration is everything that the beneficiary spends to receive the benefit, but less VAT (§ 10 para. 1 p. 2 UStG). The is also valid, if the involved parties erroneously the consideration without sales tax arrange. The agreed amount is then remunerated and the applicable sales tax split (see BFH v. 22.4.2015 - XI R 43/11, BFHE 249, 315, BStBl. II 2015, 755 = DSTRE 2015, 941 marg. 37; in BFHE 183, 353, BStBl. II 1997, 716 = DStRE 1997, 1022, under II.2.d).
    283. However, the FG infringes § 233a (5) AO by imposing a sentence of Nachzahlungszinsen has confirmed.
    Interest rates follow the main tax claim

    29a) Although according to § 233a para. 4 AO the fixing of interest with the tax assessment interest rate fixing and tax assessment remain independent decisions (BFH v. 23.12.2002 - IV B 13/02, BStBl. II 2003, 737 = BeckRS 2002, 25001723 No. 5). The FG has therefore rightly recognized that the deadline (§ 355 Abs. 1 S. 1 AO) for the separate Objection to the interest assessment at the time the opposition was lodged on 22.3.2012 had expired. Those sent on 6.1.2012 by mail to a foreign address Interest notices were deemed to have been announced on 6.2.2012 pursuant to § 122 (2) no. 2 AO. The The opposition period was therefore in accordance with § 54 (2) FGO in conjunction with § 222 (1) and (2) ZPO, § 187 (1), § 188 para. 2 BGB on 6.3.2012 (Tuesday) expired.
    30b) However, the FG has misjudged that interest as a tax allowance in principle share the fate of the main claim underlying them (Heuermann in H / H / Sp, AO, Section 233a, marg. 66). For this reason, according to § 233a para. 5 AO, the previous interest rate to change if the tax assessment repealed, amended or rectified according to § 129 AO becomes. Irrelevant is the legal basis on which the cancellation, amendment or Correction is based. Therefore, changes and cancellations are included in the Remedial proceedings and in financial court proceedings, as far as the court in the case itself decides (Loose in Tipke / Kruse, AO, § 233a marginal 50, 51). The FG would therefore be out In his view, according to the reduction of turnover tax, the interest rate also changes have to.

    314. The transfer of the calculation of the additional interest on the FA is based on § 100 Par. 2 p. 2, § 121 FGO.
    325. The decision on costs is based on § 135 (1), § 136 (1) FGO.

    This is the second consensus camp decision of the Fifth Senate. Basic to the Interpretation of § 3 (6) sentence 1 UStG is the judgment of the Senate v. 20.10.2016 - V R 31/15, DStR 2017, 147. If then for the location of § 3 paragraph 6 sentence 1 UStG the customer at The beginning of the promotions must be established, this condition is fulfilled by this Consignment II judgment substantiated. There must be a legal relationship based on that the supplier must hand over the goods to the buyer. This is regularly a purchase contract his. So, for example, a mere framework contract is not enough if it does not imply a commitment to procure the power of disposal to the customer on the stored object.

    Prof. Dr. Bernd Heuermann, VorsRiBFH

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