Sales tax for FBA deliveries; delivery commission

In line with my article from Tuesday regarding the VAT treatment of sales from app stores, there is information today on a decision by the Federal Fiscal Court. The issue is similar, namely who exactly is the service provider and the service recipient in this case and therefore also whether and what sales tax is due.

The BFH ruled:

If a seller delivers goods via the website of Amazon Services Europe s.a.r.l. (Amazon) as part of the “sale by merchant, shipment by Amazon” model (also “fulfillment by amazon” or “pan-European shipment by Amazon”), the recipient of the seller’s delivery of goods is not Amazon, but the end customer, who is given the power of disposal over the object of the delivery.

Although the complaint was essentially rejected for formal reasons, there are nevertheless a few interesting explanations

According to Art. 14a para. 2 of the VAT Directive as amended by Council Directive (EU) 2017/2455 of 05.12.2017 amending Directive 2006/112/EC and Directive 2009/132/EC as regards certain value added tax obligations for the supply of services and distance sales of goods will apply from 01.01.2021.2021, taxable persons whosupport the intra-Community supply of goods by a taxable person not established in the Community to a non-taxable person through the use ofan electronic interface, such as a marketplace, platform, portal or similar, will be treated as if they had received and supplied these goods themselves. To justify the introduction of this notional supply commission, recital 7 states that a large proportion of distance sales of goods, both from one Member State to another and from third territories or third countries to the Community, are supported by the use of an electronic interface, such as a marketplace, platform, portal or similar, often relying on warehousing arrangements. Member States could stipulate that a person other than the person liable for payment of VAT must be jointly and severally liable for payment of VAT in such cases. However, this had proven insufficient to ensure effective and efficient collection of VAT. Therefore, in order to achieve this objective and to reduce the administrative burden on sellers, tax administrations and purchasers, it is necessary to include taxable persons who support distance sales of goods through the use of such an electronic interface in the collection of VAT on those sales by providing that they are considered to be the persons who made those sales.

The issue of whether and who is responsible for sales tax is becoming an increasingly interesting one. However, when evaluating legal issues, it is always important to look at the exact circumstances and reconcile them with the relevant standards. Therefore, I can not conclusively assess and thus answer questions about my article, how it behaves with sales tax in the Epic Store, on Steam, on Twitch or the like also och. It is clear that both tax offices and tax courts are looking more and more closely at various digital forms of distribution, especially those with a foreign connection, and therefore as a company, self-employed person, streamer, game developer, the exact circumstances and thus effects on tax obligations should also be considered. Many inexperienced tax advisors like to go by the motto: “Better pay once if it is not quite clear”, in order to deal with the sometimes complicated legal issues just as little as with the perhaps not insignificant own liability.

I don’t want to prove tax consultants wrong in general, but what I have read from readers of the blog as feedback to my articles on Fiverr or on the app stores makes me doubt the competence of some colleagues. If you do not take care of the right structuring of your self-employment or your company and consider legal issues critically and also from a tax point of view, you will give away a lot of money in case of doubt!

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.