Section 5: Taxation
§ 18 Taxation procedure
(1) Subject to § 18i paragraph 3, § 18j paragraph 4, § 18k paragraph 4 and § 19 paragraph 1 sentence 4 the taxable person must submit via the officially designated interface a preliminary VAT return using the official dataset, by the 10th day following the expiry of each preliminary VAT return period in which he himself must calculate the tax due for the preliminary return VAT period (advance payment). On application, the tax office may waive the requirement of electronic submission in order to avoid any unreasonable hardship; in this case, the taxable person must submit a preliminary VAT return on official pre-printed forms. § 16 paragraph 1 and 2 and § 17 are to be applied accordingly. The advance payment shall be due on the 10th day following the expiry of the preliminary VAT return period and shall be transferred by the taxable person by this date.
(2) The preliminary VAT return period shall be the calendar quarter. Where the tax for the previous calendar year exceeds Euro 7,500, the calendar month shall be the preliminary VAT return period. Where the tax for the previous year is no more than EUR 2,000, the tax office may release the taxable person from the obligation to submit preliminary VAT returns and to make advance payments. When the taxable person commences his professional or commercial activities, the calendar month shall be the preliminary VAT return period in the current and following calendar year. Sentence 4 shall apply accordingly in the following cases:
to legal persons or partnerships listed in the commercial register, which have not yet been active in a commercial or professional capacity but where it can be proven objectively that they intend to conduct a commercial or professional activity on an independent basis (shelf companies), and such preliminary VAT period shall commence from the time this activity actually begins to be conducted, and
to the takeover of legal persons or partnerships, which have already been active in a commercial or professional capacity and are inactive or only minimally active in a commercial or professional capacity (corporate shell) at the time of takeover, and such preliminary VAT period shall commence from the time of takeover.
(2a) The taxable person may opt for the calendar month as the preliminary VAT return period instead of the calendar quarter, if there is a surplus in his favour of more than Euro 7,500 relating to the previous calendar year. In this case the taxable person must file a preliminary VAT return for the first calendar month by the 10th of February in the current calendar year. Exercising this said option shall be binding for the taxable person for the current calendar year.
(3) Subject to § 18i paragraph 3, § 18j paragraph 4, § 18k paragraph 4 and § 19 paragraph 1 sentence 4, the taxable person must submit via the officially designated interface using the official data set, an annual VAT return for the calendar year or for the shorter taxation period, in which he himself must calculate the tax to be paid or the surplus in his favour in accordance with §16 paragraph 1 to 4 and § 17 (tax declaration). In the cases referred to in § 16 paragraph 3 and 4, the tax declaration must be transmitted within one month following the expiry of the shorter tax period. On application, the tax office may waive the requirement of electronic submission in order to avoid any unreasonable hardship; in this case, the taxable person must submit a VAT return on official pre-printed forms and sign them personally.
(4) If the tax to be paid or the surplus on the tax declaration for the calendar year calculated by the taxable person differs from the total of the advance payments, the difference in favour of the tax office is due one month after receipt of the tax declaration and shall be transferred by the taxable person by this date. If the tax office differs in its assessment of the VAT owed or the surplus from the tax declaration, the difference in favour of the tax office is due one month after notification of the tax assessment and shall be transferred by the taxable person by this date. The due date of advance payments in arrears (paragraph 1) shall remain unaffected by sentences 1 and 2.
(4a) Taxable persons and legal persons, who are only required to pay tax on transactions in accordance with § 1 paragraph 1 number 5, § 13b paragraph 2 or § 25b paragraph 2, as well as suppliers of vehicles (§ 2a), must also file preliminary VAT returns (paragraphs 1 and 2) and a tax declaration (paragraphs 3 and 4). Preliminary VAT returns are only to be filed for the preliminary VAT return periods in which the tax on these transactions is to be declared. The application of paragraph 2a shall be excluded.
(4b) Paragraph 4a shall apply accordingly to persons who are not taxable persons and are liable for the tax amounts according to § 6a paragraph 4 or § 14c paragraph 2.
(4c) A taxable person not resident in Community territory who, prior to 1 July 2021, in his capacity as a taxpayer, generates transactions in accordance with § 3a paragraph 5 in Community territory may, by way of derogation of paragraphs 1 to 4, submit to the Federal Central Tax Office a tax return using the officially prescribed data set by data transmission, for each tax period (§16 paragraph 1a sentence 1), by the 20th day following the expiry of each tax period, in which he himself must calculate the tax for the aforementioned transactions (tax declaration). The tax is due by the 20th day following the expiry of the tax period and shall be transferred by the taxable person by this date. The taxable person must notify the Federal Central Tax Office of his decision to exercise the option by using the official pre-printed form, which is to be electronically transmitted, prior to the taxable person carrying out any transactions according to § 3a paragraph 5 in the Community territory. The option may only be cancelled with effect from the beginning of a taxation period. The Federal Central Tax Office is to be notified electronically of any cancellation prior to the start of the taxation period to which the said cancellation applies. If the taxable person repeatedly fails to meet his obligations according to sentences 1 to 3 or § 22 paragraph 1, or does not meet his obligations on a timely basis, the responsible tax authority in the Federal Central Tax Office shall exclude him from the taxation procedure referred to in sentence 1. The exclusion shall be effective as of the taxation period that commences after the date on which the taxable person is notified of such exclusion.
(4d) Paragraphs 1 to 4 shall not apply with respect to taxable persons not resident in Community territory who, prior to 1 July 2021, in their capacity as taxpayers, generate transactions in Germany during the taxation period (§ 16 paragraph 1) sentence 2) in accordance with § 3a paragraph 5 and who declare these transactions and pay the VAT attributable to them in another Member State.
(4e) A taxable person resident in another Community territory (§ 13b paragraph 7) sentence 2), who, prior to 1 July 2021, generates transactions in accordance with § 3a paragraph 5 in Germany as a taxable person may, by way of derogation from paragraphs 1 to 4, submit a tax return by remote data transmission using the official data set for each tax period (§ 16 paragraph 1b sentence 1), by the 20th day following the end of any given taxation period in which he himself must calculate the tax for the aforementioned transactions; this only applies if the taxable person does not have his registered office, place of management or a fixed establishment in Germany, on the island of Helgoland or in one of the areas stated in § 1 paragraph 3. The tax return must be submitted to the responsible tax authority in the Member State of the European Union in which the taxable person is resident; this tax return shall be regarded as a tax declaration within the meaning of § 150 paragraph 1 sentence 3 and § 168 of the Fiscal Code from the date the data it contains was sent by the responsible tax authority in the Member State of the European Union, to which the taxable person submitted the tax return, to the Federal Central Tax Office and was recorded there in an editable format. Sentence 2 applies to the adjustment of a tax return accordingly. The tax is due by the 20th day following the expiry of the tax period and shall be transferred by the taxable person by this date. The taxable person must notify the tax authority in the Member State of the European Union, in which the taxable person is resident, of his choice to exercise the option in accordance with sentence 1 by using the official pre-printed form, which is to be electronically transmitted, prior to the start of the taxation period from the beginning of which the taxable person will be exercising the option. The option may only be cancelled with effect from the beginning of a taxation period. The tax authority in the Member State of the European Union, in which the taxable person is resident, is to be notified electronically of any cancellation prior to the start of the taxation period to which the said cancellation applies. If the taxable person repeatedly fails to meet his obligations according to sentences 1 to 5 or § 22 paragraph 1 or does not meet his obligations on a timely basis, the responsible tax authority in the Member State of the European Union, in which the taxable person is resident, shall exclude him from the taxation procedure referred to in sentence 1. The exclusion shall be effective as of the taxation period that commences after the date on which the taxable person is notified of such exclusion. The tax return, in accordance with sentence 1, shall be deemed to have been submitted in due time if it has been submitted to the responsible tax authority in the Member State of the European Union, in which the taxable person is resident, by the 20th day following the expiry of the tax period (§ 16 paragraph 1b sentence 1) and recorded there in an editable format. The payment of tax will be deemed as received in due time, in accordance with sentence 4, if payment has been received by the responsible tax authority in the Member State of the European Union, in which the taxable person is resident, by the 20th day following the expiry of the tax period (§ 16 paragraph 1b sentence 1). § 240 of the Fiscal Code is to be applied with the proviso that a late payment will be assumed no earlier than the end of the 10th day of the second month following the expiry of the tax period (§ 16 paragraph 1b sentence 1).
(4f) If the action of an organisational unit of the political subdivision of the State or the Federal States results in a declaration obligation, all fiscal rights and responsibilities with regard to VAT taxation fall to the respective organisational unit. In such cases, the organisational unit takes the place of the political subdivision as mentioned in § 30 paragraph 2 number 1 lit. a and b of the Fiscal Code. § 2 paragraph 1 sentence 2 shall remain unaffected. The organisational unit can, by means of an organisational decision, establish for its respective area of operations, further subordinated organisational unit with effect for the future. An organisational unit which is superior to another organisational unit can, by means of an organisational decision with effect for the future, exercise the rights and responsibilities mentioned in sentence 1 of the subordinate organisational unit or consolidate several organisational unit into one organisational unit. The value thresholds mentioned in § 1a paragraph 3 number 2, § 2b paragraph 2 number 1, § 3a paragraph 5 sentence 3, § 3c paragraph 4 sentence 1, § 18 paragraph 2 sentence 2, § 18a paragraph 1 sentence 2, § 19 paragraph 1, § 20 sentence 1 number 1 and § 24 paragraph 1 sentence 1 are regarded as always exceeded with regard to the organisational unit. Options which affect the complete corporation of the political subdivision can only be exercised uniformly. The political subdivision can declare vis-á-vis its responsible tax office that, with effect for the future, sentences 1 to 5 shall not apply; a cancellation is only possible with effect for the future.
(4g) The supreme Federal State’s tax authorities or the Federal State’s tax authority engaged by it can order that another tax authority, other than the locally responsible tax authority mentioned in § 21 paragraph 1 of the Fiscal Code, shall take over the taxation of the organisational unit of the respective Federal State. The supreme Federal State’s tax authorities or Federal State’s tax authority engaged by it can agree with the supreme tax authority of another Federal State or with a tax authority engaged by this other supreme tax authority of another Federal State that another tax authority, other than the responsible tax authority mentioned in § 21 paragraph 1of the Fiscal Code, shall take over the taxation of the organisational unit of the Federal State with the responsible tax authority. The Finance Administration of Berlin or the Federal State’s tax authority engaged by it can agree with the supreme tax authority of another Federal State or with a tax authority engaged by this other supreme tax authority of another Federal State that another tax authority, other than the responsible tax authority mentioned in § 21 paragraph 1of the Fiscal Code, shall take over the taxation of an organisational unit of the political subdivision of the State.
(5) By way of derogation of paragraphs 1 to 4 the following procedure is to be applied in the case of individual passenger transport taxation in accordance with § 16 paragraph 5:
The transporter must submit, for each journey, two copies of the tax return to the responsible customs authority using the official pre-printed form.
The responsible customs authority shall assess, on behalf of the responsible tax office, the tax on both copies of the tax return and shall return one copy to the transporter, who shall be required to pay the tax immediately upon presentation. The transporter must keep this copy, along with the tax receipt with him during the entire journey.
The transporter must submit an additional two copies of the tax return to the responsible customs authority at the point where he crosses the border into a third country territory, if the number of person kilometres (§ 10 paragraph 6 sentence 2) has changed as compared to the number used to assess the tax according to number 2. In these circumstances, the customs authority shall re-assess the tax. At the same time, the amount of the difference in tax in favour of the tax office must be paid or the difference in favour of the transporter refunded. Sentences 2 and 3 shall not apply where the amount of the difference is less than EUR 2.50. In such cases, the customs authority may waive the requirement of a written tax return.
(5a) In cases of the individual taxation of vehicles (§ 16 paragraph 5a), the customer, by way of derogation of paragraphs 1 to 4, must file a tax return by remote data transmission or by using the official pre-printed form, in which he himself must calculate the VAT owed, at the latest by the 10th day following the end of the day on which the tax has arisen (tax declaration). If a pre-printed form is used, the form must be personally signed by the taxable person. The tax office may assess the tax in the event that the customer does not file the tax declaration or has not calculated the tax correctly. The tax is due on the 10th day following the conclusion of the day on which it has arisen and shall be transferred by the customer by this date.
(5b) In the cases referred to in § 16 paragraph 5b, the taxation procedures are to be carried out in accordance with paragraphs 3 and 4. The tax paid under the individual passenger transport taxation method (§ 16 paragraph 5) is to be offset against the VAT owed under paragraph 3 sentence 1.
(6) In order to avoid any hardship, the Federal Ministry, with the consent of the Federal Council, may issue a directive to extend the due dates for the preliminary VAT returns and advance payments by one month and to specify the procedures in more precise terms. In so doing, it may stipulate that the taxable person shall be required to make a special deposit payment for the calendar year.
(7) In order to simplify the taxation procedures, the Federal Ministry of Finance, with the consent of the Federal Council, may issue a directive stipulating under what conditions the levying of tax may be waived for the supply of gold, silver and platinum, as well as for supplies relating to business activities concerning these precious metals carried out between taxable persons registered with the German stock exchange and entitled to participate in trading. This shall not apply to coins and medallions made of these precious metals.
(8) (deleted)
(9) In order to simplify the taxation procedures, the Federal Ministry of Finance, with the consent of the Federal Council, may issue a directive regulating the refund of input VAT (§ 15) to taxable persons resident abroad in a special procedure, by way of derogation of section 16 and from paragraphs 1 to 4. In so doing, it may also be stipulated
that the refund shall only be granted, if a certain minimum amount is reached;
within which deadline the refund application must be filed;
in which cases the taxable person must sign the application personally;
how and to what extent the deductible input VAT is required to be proven by means of submitting original invoices and import documents;
that the notice pertaining to the refund of input VAT shall be issued electronically;
how and to what extent the amount to be refunded shall be subject to interest.
Tax amounts invoiced for export supplies where the goods are transported or dispatched by the purchaser or by a third party authorised by him, which are VAT exempt according to § 4 number 1 lit. a in connection with § 6 or for intra-Community supplies which are VAT exempt according to § 4 number 1 lit. b in connection with § 6a or which could be VAT exempt according § 6a paragraph 1 sentence 1 number 4 are excluded from the refund. If the preconditions for the special procedure set out in the directive mentioned in sentences 1 and 2 are met and if the taxable person resident abroad only owes VAT according to § 13a paragraph 1 number 1, in connection with § 14c paragraph 1 or § 13a paragraph 1 number 4, the refund of the input VAT can only be exercised via the special procedure. A taxable person, who is resident in Community territory and who executes transactions, which in part exclude input VAT deductions, shall receive a maximum refund, in the amount he would be entitled to receive for an input VAT deduction in the Member State in which he is resident, based on the proportional deduction applied. The input VAT shall only be refunded to a taxable person not resident in Community territory if VAT or a similar tax is not levied in the country in which the taxable person has his registered office or is refunded to taxable persons resident in Germany when tax is levied. Excluded from such a refund are input VAT amounts incurred on the purchase of fuel by taxable persons not resident in Community territory. Sentences 6 and 7 shall not apply to taxable persons not resident in Community territory if, in their capacity as taxpayers, they have, prior to 1 July 2021, provided during the tax period, (§ 16 paragraph 1 sentence 2) supply of services in accordance with § 3a paragraph 5 in Community territory and have applied § 18 paragraph 4c to such transactions or have declared such transactions in another Member State and have also paid the attributable VAT; a precondition for this is that the input VAT relates to transactions in accordance with § 3 paragraph 5. Sentences 6 and 7 shall also not apply to taxable persons not resident in Community territory if, in their capacity as taxpayers, they have, prior to 1 July 2021, provided during the tax period, (§ 16 paragraph 1 sentence 2) supply of goods in accordance with § 3 paragraph 3a sentence 1 within a Member State, distance sales in accordance with § 3 paragraph 3a sentence 2, intra-Community distance sales in accordance with § 3c paragraph 2 or 3 or supply of services to recipients mentioned in § 3a paragraph 5 sentence 1 in the Community territory and have applied, for those transactions, §§ 18i, 18j or § 18k; a precondition for this is that the input VAT relates to supply of goods in accordance with § 3 paragraph 3a sentence 1 within a Member State, distance sales in accordance with § 3 paragraph 3a sentence 2, intra-Community distance sales in accordance with § 3c paragraph 2 or 3 or supply of services to recipients mentioned in § 3a paragraph 5 sentence 1 in the Community territory.
(10) The following shall apply in order to safeguard the VAT claim in cases of intra-Community acquisition of new motorised vehicles and new aircraft (§ 1b paragraph 2 and 3):
the authorities responsible for the licensing or registration of vehicles are obligated, in the absence of any request, to inform the tax office responsible for the intra-Community acquisition of the following new vehicles:
in the case of new motorised land vehicles, the first time the Registration Certificates Part II are issued or, as relates to vehicles that do not require registration, the first time an official number plate is issued. At the same time, the information referred to in number 2 lit. a and the official number plate allocated or, if this has not yet been allocated, the number of the Registration Certificate Part II, is required to be submitted.
in the case of new aircraft, the first time registration of these aircraft. At the same time, the information referred to in number 3 lit. a and the official registration number allocated must be submitted. An entry of an aircraft in the register for liens on aircrafts shall not be regarded as registration within the meaning of this regulation.
The following shall apply with regard to the intra-Community acquisition of new motorised land vehicles (§ 1b paragraph 2 sentence 1 number 1 and paragraph 3 number 1):
The applicant is required to provide the following information to be submitted to the tax authorities when a vehicle Registration Certificate II is issued for the first time in Germany or the official number plate is allocated for the first time in Germany for vehicles that do not require registration:
aa)the name and address of the applicant, as well as the tax office responsible for him (§ 21 of the Fiscal Code),
bb)the name and address of the supplier,
cc)the supply date,
dd)the date of first entry into service,
ee)the kilometre reading on the supply date,
ff)the vehicle type, the vehicle manufacturer, the vehicle model and the vehicle identification number,
gg)the purpose of use.
The applicant is also obligated to provide the information referred to in lit. aa and bb if he is not one of the persons referred to in § 1a paragraph 1 number 2 and § 1b paragraph 1 or if there is any doubt that the characteristics of a new vehicle, within the meaning of § 1b paragraph 3 number 1, are given. The licensing authorities may only issue a Registration Certificate II or, in the case of vehicles that do not require registration which, according to § 4 paragraph 2 and 3 of the Vehicle Registration Regulations, bear an official number plate, a Registration Certificate I, where the applicant has provided the aforementioned information.
If the VAT on the intra-Community acquisition has not been paid, the vehicle licensing authorities, upon the request of the tax office, must declare the Registration Certificate II as invalid and invalidate the official number plate. The vehicle licensing authorities shall make the necessary arrangements required for this by means of an administrative act (registration cancellation notice). The tax office may also officially cancel the vehicle registration if the vehicle licensing authorities have not yet initiated such proceedings. Sentence 2 shall apply accordingly. The tax office shall immediately notify the vehicle licensing authorities of the executed cancellation and shall issue the vehicle owner with a cancellation notice. The official cancellation of the registration shall be executed according to the Administrative Procedure Act. The Administrative Court shall have jurisdiction with regard to any disputes arising in respect of the official cancellation of the registration.
The following shall apply with regard to the intra-Community acquisition of new aircraft (§1b paragraph 2 sentence 1 number 3 and paragraph 3 number 3):
The applicant shall be required to provide the following information, regarding the first-time registration, in the aircraft register to be submitted to the tax authorities:
aa)the name and address of the applicant, as well as the tax authority responsible for him (§ 21 of the Fiscal Code),
bb)the name and address of the supplier,
cc)the supply date,
dd)the consideration (purchase price),
ee)the date of the first entry into service,
ff)the maximum takeoff weight,
gg)the number of hours flown on the day of supply,
hh)the aircraft manufacturer and aircraft type,
ii)the purpose of use.
The applicant is also obligated to provide the information referred to in sentence 1 lit. aa and bb if he is not one of the persons referred to in § 1a paragraph 1 number 2 and § 1b paragraph 1 or if there is doubt as to whether the characteristics of a new vehicle, within the meaning of § 1b paragraph 3 number 3, are given. The Federal Aviation Office may only enter the aircraft in the aircraft register if the applicant has provided the aforementioned information.
If the tax has not been paid on the intra-Community acquisition, the Federal Aviation Office must revoke the operating licence upon the request of the tax office. The vehicle licensing authorities shall make the arrangements required for this by means of an administrative act (registration cancellation notice). The official cancellation of the registration shall be executed according to the Administrative Procedure Act. The Administrative Court shall have jurisdiction with regard to any disputes arising in respect of the official cancellation of the registration.
(11) The custom offices responsible for tax supervision shall be involved in the recording of passenger transportation in buses not licensed in Germany for VAT purposes. Within the scope of temporary and local controls, they shall be entitled to stop any buses, which, from their outward appearance, give the impression of not being licensed in Germany, and to determine the actual and legal relationships that are decisive for the VAT and to submit the information obtained to the responsible tax authorities.
(12) Taxable persons resident abroad (§ 13b paragraph 7), who conduct cross-border passenger transport in buses not licensed in Germany, must notify the tax office responsible for the VAT of this fact prior to carrying out transactions of this kind in Germany for the first time (§ 3b paragraph 1) sentence 2), provided that these transactions are not subject to the individual taxation of passenger transportation (§ 16 paragraph 5). The tax office shall issue a certificate with regard to this. The certificate is to be carried throughout each trip and presented upon request to the customs offices responsible for tax supervision. If the certificate is not presented, the relevant customs office may require that a security deposit, in accordance with the tax regulations in the Fiscal Code, in the estimated amount of the VAT, be paid with regard to the individual transport service. The security deposit paid is to be offset against the tax owed according to paragraph 3 sentence 1.
Fundstelle(n):
zur Änderungsdokumentation
ZAAAH-50183