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Dr Charlotte Pötters & Rainald Vobbe from our German member firm, Flick Gocke Schaumburg, report on new changes introduced by the German Ministry of Finance in relation to the VAT treatment of online events. Providers should prepare for the new rules which come into effect from July 2024.
Read more below…
New administrative guidelines lead to a new VAT treatment of online events. Providers should therefore become aware of the changes that will apply from 1 July 2024.
A commentary by Dr Charlotte Pötters & Rainald Vobbe.
Background
Being online has become a firm part of our lives. This has been accelerated in no uncertain terms by the COVID-19 pandemic and the resulting lockdowns. As such, it’s no longer unusual to partake in education, art, and cultural activities on the internet. For providers and participants alike, digital events are often low in cost, meaning that they could well be around for a long time. And given that it does not matter where you are located, international market players can be a part of any given market. They can provide their content from wherever they want to customers who, in turn, can receive it wherever they want.
The content is provided in the widest variety of formats imaginable. The nature of online offerings, whether they are live events, pre-recorded sessions, or hybrid formats with or without supplementary services like training materials or download access, can influence the determination of the place of supply and the eligibility for reduced tax rates or tax exemptions.
Guidance from the German Ministry of Finance (April 2024)
The Federal Ministry of Finance has now commented on these demarcation issues in detail for the first time. Given its view applies to all taxable services in Germany, the statements were partly surprising and will have considerable consequences for providers both in Germany and abroad. For all providers who (also) make their offers available online, it is therefore essential to deal with this latest tax authorities‘ opinion . As the amended administrative opinion is to come into force as early as 1 July 2024, preparations should be made as soon as possible!
In its guidance, the Ministry of Finance gave its view on:
• Pre-produced content
• Live streaming
• Commission service
• Scope of services and assessment basis for combinations of services
• Application to other online service offers
Type of service and place of supply
The principles are intended to apply to all sectors. Specifically, this entails education (e.g. training events), sport (e.g. fitness courses) and entertainment, which is broadly diversified (e.g. concerts). The crux of the VAT classification in the B2C area lies in the distinction between electronically supplied services and other event services. While pre-produced content that can be accessed at a later date is deemed to be electronically supplied services to which neither the tax exemption nor the tax reduction can be applied, live streaming services (including hybrid events) are still regularly not deemed to be electronically supplied services, meaning that they could well be subject to tax exemptions or reductions. With electronically supplied services in the B2C sector, the place of supply is also determined by the place of residence of the recipient (Art. 56(1)(k) of the VAT Directive; Sec. 3a (5) sentence 2 no. 3 UStG). However, as far as other event services in the B2C sector are concerned, the place of the event/activity (Sec. 3a(3) no. 3(a) UStG) is relevant.
Particular attention should be paid to the Ministry of Finance’s comments on the determination of the place of supply in accordance with “the place of activity” ! Previously in Germany, it was generally assumed that the other service in these cases was provided at the place where the provider was active, i.e. where the lecturer was filmed (known as the “place of transmission principle”). However, now the Ministry of Finance explicitly assumes that the place of activity should be at the place of habitual abode or the place of residence/registered office of the participant. That means, if the seminar is followed by participants from different locations, this potentially leads to different places of service. So, for example, a foreign provider who offers live seminars for (private) German participants must now pay value-added tax in Germany.
The Ministry of Finance’s statement may provide some clarity, but it will lead to tax liability in Germany for some providers. The question also arises as to how this fits in with the statements of the European Court of Justice (ECJ) in the ‘L.W. Geelen’ case. This case centred around where live webcam performances, constituting an entertainment activity, is “effectively carried out” and where the service provider – in this case the operator of the website – has its registered office (see ECJ of 08 May 2019 – C-568/17 – L.W. Geelen, UR 2019, 456).
However, because the Ministry of Finance’s interpretation merely anticipates the planned legislative amendment (see Sec. 3a(3) UStG-E, which implements Art. 54 (1) sentence 2 of the VAT Directive, amended in April 2022), a rethink in this area would have been necessary at the latest when the provision came into force.
That said, due to the very short implementation period, there is now an acute need for action concerning services taxable in Germany. If other countries are involved in addition to the German tax authorities, it is not unlikely that divergent legal opinions will be held in all countries until the new EU regulation is implemented. In this respect, taxpayers should be prepared for discussions.
Agency service
With regard to agency services that are also under discussion and are likely to be encountered particularly in the case of streaming services, the Ministry of Finance reaffirms its view that personal characteristics must be examined separately for each service and cannot be transferred to the intermediary entrepreneur. These statements at least provide clarity and thus help businesses who carry out activities in this environment.
Combinations of services
For distance-learning institutes and other educational institutions, the Ministry of Finance letter still has a far-reaching surprise in store in connection with combinations of services: Considering the most recent rulings, it is initially less surprising that, when it comes to the question of the relationship between the main and ancillary costs, the essential distinguishing feature should be an independent separate fee. Accordingly, if a single separate fee is paid, it is fundamentally considered a single separate service. Consequently, a single separate service is deemed to exist whenever a recording of the event is provided (free of charge) in addition to the live streaming offer. However: According to the Ministry of Finance, this should then always be a service subject to the standard rate of tax – i.e. in this case, tax exemption/reduction no longer applies, but the standard rate of tax must always be applied in full. Therefore, as soon as a recording is made available, it affects the offering, and what is often a taxexempt live event becomes a service subject to the standard tax rate sui generis!
Effects
The Ministry of Finance’s guidance necessitates immediate action, especially for exempt event services and providers outside Germany offering online or hybrid events to customers in Germany. Taxpayers must verify whether they are being taxed at the correct place of supply and evaluate the content of their services. If a single separate fee is charged, the combination of live streaming and recordings will be scrutinised.
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