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Intra-Community delivery: proof only through supporting documents and records

The Federal Fiscal Court (BFH) recently ruled (Case V R 14/14) that an entrepreneur may not furnish proof of an intra-Community delivery exempt from VAT by witnesses, but only by supporting documents and records.

Intra-Community deliveries are exempt from VAT in accordance with VAT law (UStG). In the context of an external audit, the plaintiff could not provide unambiguous proof of the export of the goods to another EU Member State either by waybills or other records. The plaintiff filed an action against the subsequent tax assessments on the grounds that the transport of the goods could be proved by witnesses. The tax court and the BFH did not follow suit. The Value Added Tax Implementation Ordinance prescribes a proof of the book or receipt.

Verification obligations may also apply in the customs procedure

The exclusive proof of books or receipts could also play a role for thecustoms law in addition to the VAT law. Simplifications in the procedure, such as for the authorised consignor or consignee, in the customs warehousing procedure or in the local clearance procedure, are characterised by accounting obligations.

In its decision of 20 April 2010 – VII B 157/09, the Federal Fiscal Court left open whether witness evidence for the actual use of the goods is admissible in the context of the special use. In this case, it didn’t matter. However, it is obvious that the treasury sees a risk of abuse in the testimony of witnesses, which it would like to rule out. Whether witness evidence in customs matters is actually excluded would, however, have to be examined in each individual case.

O&W Attorneys at Law are represented in both official and fiscal court proceedings


Lawyer Dr. Tristan Wegner

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20354 Hamburg
T +49 (0) 40 / 36 96 15 0
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