VAT liability for supervisory board members

Introduction

As a lawyer with a focus outside of tax law, I still find it important to address relevant legal issues that affect companies. The VAT treatment of supervisory board members is one such issue. It is important for many of my readers, as it has significant implications for business practice. The latest rulings in this area provide important insights into the current legal situation.

Legal situation regarding the VAT liability of supervisory board members

The VAT treatment of supervisory board members, in particular the question of whether their activities are to be regarded as entrepreneurial, has long been the subject of legal debate. The tax authorities assumed that supervisory board members with a variable remuneration component of at least 10% of the total remuneration are to be regarded as self-employed and entrepreneurial. However, this view and in particular the definition of a quantitative limit have been questioned in legal practice.

Decision of the Cologne Fiscal Court

The Cologne Fiscal Court commented on this issue in its ruling dated November 15, 2023 (9 K 1068/22). In the case in question, the plaintiff, who was chairman of the supervisory board of several stock corporations, received attendance fees that amounted to more than 10% of his total remuneration. The tax office considered him to be entrepreneurially active. However, the court ruled that the meeting-based remuneration alone is not sufficient to establish an economic risk that characterizes an entrepreneurial activity.

In a parallel case, the European Court of Justice ruled on December 21, 2023 (C-288/22, TP case) on the activities of a member of the board of directors of Luxembourg stock corporations. The ECJ ruled that there was no entrepreneurial status as there was no economic risk for the plaintiff, in particular as the performance-related bonuses did not represent a concrete risk of profit or loss for the plaintiff.

Legal assessment and effects

The recent rulings of the Cologne Fiscal Court and the European Court of Justice help to clarify how supervisory board activities are to be treated for VAT purposes, particularly with regard to the distinction between entrepreneurial and non-entrepreneurial activities. These decisions have significant implications: While they allow for input tax deduction for some boards that are considered to be engaged in business, they could result in an additional financial burden for others whose activities are considered to be non-business, as VAT is a cost for companies without input tax deduction rights