Section 5: Taxation

§ 18j Special taxation procedure for intra-Community distance selling, for supplies of goods within a Member State via electronic interface and for supplies of services provided by taxable persons resident in the Community territory but not in the Member State of consumption

(1) A taxable person who

1. carries out supplies of goods in accordance with § 3 paragraph 3a sentence 1 within a Member State or intra-Community distance selling in accordance with § 3c paragraph 1 sentence 2 and 3 in the Community territory after 30 June 2021 or

2. is resident in the Community territory and carries out supplies of services to recipients in accordance with § 3a paragraph 5 sentence 1 in another Member State of the European Union after 30 June 2021

and for which he is liable there for VAT and is required to file VAT returns, must notify when he wishes to participate in the special taxation procedure, in accordance with title XII chapter 6 paragraph 3 of Council Directive 2006/112/EC as amended by Article 1 number 8 to 13 of Council Directive 2019/1995 of 21 November 2019 amending Directive 2006/112/EC, as regards provisions relating to distance sales of goods and certain domestic supplies of goods (OJ L 310 of 2 December 2019, page 1). The notification must be submitted by remote data transmission, using the official dataset, to the responsible tax authority of the Member State of the European Union responsible according to Article 369a number 3 of Council Directive 2006/112/EC as amended by Article 1 number 9 of Council Directive 2019/1995; the responsible tax authority in Germany is the Federal Central Tax Office. The notification must be forthcoming prior to the commencement of the taxation period (§ 16 paragraph 1d sentence 1) from the start of which the taxable person will be making use of the special taxation procedure. Participation in the special taxation procedure is only possible if the taxable person does so uniformly for all Member States of the European Union and for all turnovers according to sentence 1; with regard to supplies of services to recipients in accordance with § 3a paragraph 5 sentence 1, this only applies for Member States of the European Union where the taxable person neither has his seat nor a fixed establishment. The application of the special taxation procedure can only be cancelled with effect from the start of a taxation period. The cancellation must be declared prior to the start of the taxation period to which the said cancellation applies vis-á-vis the tax authority in accordance with sentence 2 using official data set and sent by remote data transmission.

(2) Taxable persons resident in other Community territory (§ 13b paragraph 7 sentence 2) can only notify their participation in the special taxation procedure in the Member State of the European Union where they are resident; with regard to supplies of services to recipients in accordance with § 3a paragraph 5 sentence 1 in Germany, participation is only permitted when the taxable person does not have his registered office, place of management or a fixed establishment in Germany or on the island of Helgoland. Taxable persons resident in Germany can only notify their participation in the special taxation procedure in Germany; this does not apply in sentence 4 cases. A taxable person is resident in Germany if he has his registered office or place of management in Germany or in the case where he is resident in a third country, but has a fixed establishment in Germany. If the taxable person resident in a third country has, in addition to a fixed establishment in Germany, at least one fixed establishment in other Community territory, he can decide to notify his participation in the special taxation procedure in Germany. If the taxable person resident in a third country does not have a fixed establishment in other Community territory, he must notify his participation in the special taxation procedure in Germany, when the transportation or dispatch of the goods starts in Germany. If the transportation or dispatch of the goods starts partly in Germany and partly in other Community territory, the taxable person resident in the third country, who does not have a fixed establishment in other Community territory can decide to notify his participation in the special taxation procedure in Germany. This decision, as mentioned in sentence 4, is binding on the taxable person resident in a third country for the respective calendar year and the two following calendar years.

(3) If the notification, in accordance with paragraph 1 sentence 1, has been submitted in Germany and if the taxable person does not meet the preconditions for participation in the special taxation procedure, the Federal Central Tax Office will assess this vis-á-vis the taxable person and will deny his participation in the special taxation procedure.

(4) A taxable person, who applies the special taxation procedure mentioned in paragraph 1, is required to submit a VAT return to the tax authority, according to paragraph 1 sentence 2 in connection with paragraph 2, within one month after the expiration of the tax period (§ 16 paragraph 1d sentence 1) using the official dataset by remote data transmission. The taxable person is responsible for calculating in the VAT return, the tax due for the tax period. The calculated tax is due on the last day of the month following the tax period and must be transferred by the taxable person to the tax authority by this date in accordance with paragraph 1 sentence 2. If the taxable person provides supplies of services in Germany in accordance with paragraph 1 sentence 1, § 18 paragraphs 1 to 4 do not apply. Any amendment of a tax return, which is made within three years after the last day of the period mentioned in sentence 1, shall be notified by using a separate tax return and by stating the tax period which is to be amended.

(5) The tax return, within the meaning of paragraph 4 sentence 1 and 2, which the taxable person has submitted to the tax authority of another Member State of the European Union, is regarded as a tax declaration in accordance with § 150 paragraph 1 sentence 3 and § 168 of the Fiscal Code at the point in time when the data included in the tax return is transmitted by the responsible tax authority of another Member State of the European Union to the Federal Central Tax Office and is recorded there using a processible method. This applies accordingly with regard to amendments of tax returns. A tax return, within the meaning of sentence 1, is regarded as submitted in due time if it has been submitted to the responsible tax authority of another Member State of the European Union by the last day of the deadline, in accordance with paragraph 4 sentence 1, and is recorded there using a processible method. The tax based on a tax return, within the meaning of sentence 1, is paid in due time if the payment has been received by the responsible tax authority of another Member State of the European Union by the last day of the deadline, in accordance with paragraph 4 sentence 3. § 240 of the Fiscal Code, 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 expiration of the tax period.

(6) If the taxable person repeatedly fails to meet his obligations according to paragraph 3 or § 22 paragraph 1 or his reporting obligations stipulated by another Member State of the European Union according to Article 369k of the Council Directive 2006/112/EC, or does not meet his obligations in a timely manner, the responsible tax authority, according to paragraph 1 sentence 2, shall exclude him from the special taxation procedure referred to in paragraph 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. If the exclusion results from a change of the place of seat or fixed establishment, the exclusion shall be effective as of the date of this change. The exclusion due to the repeatedly failure to meet the obligations in sentence 1, also results in an exclusion from the special taxation procedures within the meaning of §§ 18j and 18k.

(7) When the notification in accordance with paragraph 1 sentence 1 is declared vis-á-vis the Federal Central Tax Office and the Federal Central Tax Office submits the tax returns to the responsible tax authority of another Member State of the European Union, the §§ 2a, 29b to 30, 32a to 32j, 80, 87a, 87b and the second section of the third part and the seventh part of the Fiscal Code and the Tax Court Code are applicable with regard to the special taxation procedure.

(8) § 18 paragraph 4f shall apply accordingly.