The following questions have been raised to the European Court of Justice:
Unofficial translation/summary:
- In every German state there is a partnership with the name “Medizinischer Dienst der Krankenversicherung” (MDK).
- MDK has the task of providing advice for the care funds set up at the health insurance funds on the care needs of insured persons.
- The advice is drawn up by doctors, qualified care providers and other qualified persons who can use the MDK to deal with the peaks in the amount of work.
- In the years 2012 – 2014, the applicant drafted recommendations for the MDK Niedersachsen (MDK NS) as external expert on the care needs of patients.
- The MDK NS has paid these services on a monthly basis and no VAT was charged.
- The applicant classified those advisory activities as VAT exempt, but has made full use of the deduction of input tax for all services received.
- The tax authorities were of the opinion that the advisory work was not exempt from VAT neither under national law nor under EU law.
- The tax authorities then imposed VAT assessments on 03.02.2015.
- The applicant appealed against that to the tax court.
- The appeal was largely accepted because granting advice as “service closely related to social work and social security” is exempt from VAT.
- The tax court relied on EU law in this regard.
The tax authorities challenge this and claim that it does not follow from the national provisions that the advisory services are VAT exempt.
Moreover, according to the tax authorities, it has not been established that the health insurance fund has consciously covered the costs of the applicant’s advisory work.
Questions:
- Does the activity fall within the scope of Article 132 (1) (g), when a taxpayer provides advice on the care needs of patients on behalf of the Medizinische Dienst der Krankenversicherung (medical insurance department)?
- If the first question is answered in the affirmative,
(a) For the recognition of a taxpayer to be an institution of a social nature within the meaning of Article 132 (1) (g), it is sufficient for him to provide services as a contractor to an institution national law recognized as a social institution within the meaning of Article 132 (1) (g)?
(b) If Question 2 (a) is answered in the negative: In circumstances such as those in the main proceedings, it is sufficient for the health and care funds to cover the costs of a recognized institution within the meaning of Article 132 (1) (g) in full, so that a contractor from this institution can also be regarded as a recognized institution?
(c) If questions 2 (a) and 2 (b) are answered in the negative: may a Member State make recognition as a social institution conditional on the taxable person actually having an agreement with a social security or social work institution; or is it sufficient for recognition that an agreement could be concluded under national law?
Source: minbuza.nl (Dutch)
