Section 5: Taxation

§ 18k Special taxation procedure for distance selling of goods imported from third countries via shipments with a maximum material value of Euro 150

(1) A taxable person who, after 30 June 2021, carries out distance selling in his capacity as taxpayer, in accordance with § 3 paragraph 3a sentence 2 or § 3c paragraph 2 or 3, in shipments with a material value of Euro 150 in the Community territory within which he is liable for VAT and is required to file VAT returns, or an agent resident in the Community territory engaged by him is required to notify when he whishes to participate in the special taxation procedure, in accordance with title XII chapter 6 paragraph 4 of Council Directive 2006/112/EC as amended by Article 2 number 30 of Council Directive (EU) 2017/2455 of 5 December 2017 amending Directive 2006/112/EC and Directive 2009/132/EC, as regards certain value added tax obligations for supplies of services and distance sales of goods (OJ L 348 of 29 December 2017, page 7). 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 369l sub-section 2 number 3 of Council Directive 2006/112/EC prior to the commencement of the taxation period (§ 16 paragraph 1e sentence 1); the responsible tax authority in Germany is the Federal Central Tax Office. Participation in the special taxation procedure is, for taxable persons not resident in the Community territory, only permitted when the third country in which the taxable person is resident, is mentioned in the Council Implementation Regulation (EU) No 282/2011 according to Article 369m or when he has contractually appointed an agent resident in the Community territory and has communicated this to the tax authority mentioned in sentence 2. Sentence 1 does not apply for shipments, which contain excisable goods. 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 distance sales according to sentence 1; the participation is effective as of the day on which the individual identification number of the taxable person issued according to Article 369q paragraph 1 or 3 of Council Directive 2006/112/EC has been announced to the taxable person or to the agent engaged by him. 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 the official data set by remote data transmission.

(2) Taxable persons resident in other Community territory (§ 13b paragraph 7 sentence 2) or engaged agents can only notify their participation in the special taxation procedure in the Member State of the European Union where they are resident. Taxable persons resident in Germany or engaged agents can only notify their participation in the special taxation procedure in Germany; this does not apply in sentence 4 cases. A taxable person or an engaged agent is regarded as 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, he has a fixed establishment in Germany. If the taxable person resident in a third country or the engaged agent also has in addition to the 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. This decision, as mentioned in sentence 4, is binding on the taxable person or the engaged agent 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 or the engaged agent who applies the special taxation procedure mentioned in paragraph 1 is required to submit a VAT return to the tax authority, in accordance with paragraph 1 sentence 2 in connection with paragraph 2 a, within one month after the expiration of the tax period (§ 16 paragraph 1e sentence 1) using the official dataset by remote data transmission. The taxable person or his appointed agent is responsible for calculating the tax due in the VAT return 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 or his appointed agent 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) A tax return, within the meaning of paragraph 4 sentences 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 and 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 expiration of the tax period.

(6) If the taxable person or the engaged agent repeatedly fails to meet his obligations according to paragraph 3 or § 22 paragraph 1 or his reporting obligations as stipulated by another Member State of the European Union according to Article 369x of the Council Directive 2006/112/EC, or does not meet his obligations on a timely basis, 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 of the engaged agent also results in the exclusion of the principal. The exclusion shall be effective as of the taxation period that commences after the date on which the taxable person or the engaged agent 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; in cases where the exclusion was caused by other reasons, the exclusion shall be effective as of the taxation period that follows the date on which the taxable person or the engaged agent is notified of such exclusion. Exclusion due to the repeated failure to meet the obligations in sentence 1 also results in exclusion from the special taxation procedures within the meaning of §§ 18j and 18k; unless the exclusion was caused by repeated violation of the obligations mentioned in sentence 1 by the agent engaged by the taxable person.

(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, §§ 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.