Germany: Pharmaceutical industry not entitled to reduce its VAT burden
International Tax Review is part of the Delinian Group, Delinian Limited, 4 Bouverie Street, London, EC4Y 8AX, Registered in England & Wales, Company number 00954730
Copyright © Delinian Limited and its affiliated companies 2024

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Germany: Pharmaceutical industry not entitled to reduce its VAT burden

pharmaceuticals50.jpg

The German Federal Fiscal Court denied the claim of a drug manufacturer to reduce its VAT after it had paid a solidarity contribution to the health insurance fund.

In 2002, the pharmaceutical industry paid a solidarity contribution totalling €400 million to the health insurance fund. The German Federal Tax Court had to decide whether the solidarity contribution affected the VAT liability of the drug manufacturers.

As the cost of certain drugs had increased, the German government made the decision to set a price limit for these drugs. The pharmaceutical industry wanted to avoid such implementation of a price limit. Therefore, it was agreed that the drug manufacturers would pay the solidarity contribution of €400 million to the health insurance fund as compensation for the financial burden caused by the high costs of the drugs. Each drug manufacturer was required to pay a solidarity contribution in proportion to its drug sales. The proportion of €400 million each health insurance fund received was calculated based on its expenses it incurred purchasing these drugs in 2001.

In the case before the German Federal Tax Court, a drug manufacturer adjusted his VAT after he paid his share of the solidarity contribution. In his opinion, the solidarity contribution had reduced the taxable base for his drug sales (article 90, section 1 Council Directive 2006/112/EC).

The court denied the VAT adjustment, ruling that the principles of the European Court of Justice’s Elida Gibbs (C-317/94) decision were not applicable in this case. In the Elida Gibbs case the manufacturer could reduce his VAT liability if he granted a price reduction to a later customer in the supply chain. However, in the same case, price reductions granted by the manufacturer referred to the supply of goods carried out by the manufacturer. In this respect, there was a direct link between the manufacturer’s supply of goods and the subsequent price reduction granted.

In contrast, in this German case, a direct link between the solidarity contribution and the supply of goods by the drug manufacturer could not be determined. It was also unclear whether all health insurance funds which received a proportion of the solidarity contribution had actually even purchased the plaintiff’s drugs. The fact that the contribution of the drug manufacturer was based on its drug sales was regarded purely as a calculation method.

The solidarity contribution was also meant to prevent price regulation in the future. Therefore, the solidarity contribution was not granted by the drug manufacturer as price reduction for previously carried out supply of drugs.

Eveline Beer (eveline.beer@kmlz.de) is a lawyer and certified tax consultant with Küffner Maunz Langer Zugmaier, the principal correspondent for Germany for the indirect tax channel of www.internationaltaxreview.com

more across site & bottom lb ros

More from across our site

The reported warning follows EY accumulating extra debt to deal with the costs of its failed Project Everest
Law firms that pay close attention to their client relationships are more likely to win repeat work, according to a survey of nearly 29,000 in-house counsel
Paul Griggs, the firm’s inbound US senior partner, will reverse a move by the incumbent leader; in other news, RSM has announced its new CEO
The EMEA research period is open until May 31
Luis Coronado suggests companies should embrace technology to assist with TP data reporting, as the ‘big four’ firm unveils a TP survey of over 1,000 professionals
The proposed matrix will help revenue officers track intra-company transactions from multinationals
The full list of finalists has been revealed and the winners will be presented on June 20 at the Metropolitan Club in New York
The ‘big four’ firm has threatened to legally pursue those behind the letter, which has been circulating on social media
The guidelines have been established in the wake of multiple tax scandals and controversies that have rocked the accounting profession
KPMG Netherlands’ former head of assurance also received a permanent bar and $150,000 fine; in other news, asset management firm BlackRock lost a $13.5bn UK tax appeal
Gift this article