Place of delivery in a consignment warehouse
UStG § 1 Abs. 1 Nr. 1, § 3 Abs. 6, Abs. 7, § 17 Abs. 2 Nr. 11.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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Tenor:
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.
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.).
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.
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.
Notice:
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
