BFH, resolution of 22 November 2023, XI R 1/20
The BFH ruling deals with the allocation of the movement of goods in the context of a cross-border chain transaction according to the old regulation of § 3 para. 6 sentence 6 UStG, which applied until 31.12.2019.
In the case in dispute, the goods were first transported from Germany to a warehouse in the Netherlands and from there to Kazakhstan (broken transportation?). The BFH ruled that, irrespective of whether there was a broken transport, the power of disposal had already been transferred to the last acquirer Z in Germany, so that X could not claim an intra-Community, tax-free supply in Germany. Even in the case of a “broken” shipment, it depends on whether the first acquirer has already transferred the power of disposal to the second acquirer in Germany. The place of supply from X to Y was in Germany in accordance with § 3 (7) sentence 2 UStG. Art. 36a of the VAT Directive is unlikely to change the view of the BFH because it only expressly regulates the intermediary who transports or dispatches the goods and does not provide any indication of how to proceed in the case of a broken transport.
In the case in dispute, the goods were first transported from Germany to a warehouse in the Netherlands and from there to Kazakhstan (broken transportation?). The BFH ruled that, irrespective of whether there was a broken transport, the power of disposal had already been transferred to the last acquirer Z in Germany, so that X could not claim an intra-Community, tax-free supply in Germany. Even in the case of a “broken” shipment, it depends on whether the first acquirer has already transferred the power of disposal to the second acquirer in Germany. The place of supply from X to Y was in Germany in accordance with § 3 (7) sentence 2 UStG. Art. 36a of the VAT Directive is unlikely to change the view of the BFH because it only expressly regulates the intermediary who transports or dispatches the goods and does not provide any indication of how to proceed in the case of a broken transport.
Source KPMG
