Germany: Ausgangsvermerk does not always suffice as proper proof of export supplies
Exporters from Germany should be aware that Customs requirements for proper proof of export changed in May.
For zero rated export supplies of goods, proof of transportation must be furnished. According to sections 9 and 10 of the German VAT Implementation Code (UStDV), taxable persons filing electronic export declarations via ATLAS are required to provide the so-called Ausgangsvermerk to the tax authorities.
On May 17 2014, ATLAS release 8.5 was transferred into real-time operation, among other things, changing the Ausgangsvermerk necessary for VAT purposes. This change concerns goods being declared for the export procedure followed by a transit procedure. If a German Customs office of destination terminates the transit procedure, the Ausgangsvermerk will now carry the watermark Ausgangsvermerk gilt nicht für Umsatzsteuerzwecke. By means of ATLAS-participant information dated May 15 2014, German Customs authorities stated that the modification only concerns Customs offices of destination with the competence “customs office of exit - inland.” In a case where the Customs office of destination is a Customs office at the border, the export notice for VAT purposes will further on be issued. The reason for the change is that in the cases at hand Ausgangsvermerke for VAT purposes are issued though the goods are still located in the Customs territory of the EU. The Customs office that issues the Ausgangsvermerk is, however, not able to confirm the export of the goods into a third country.
Significance in practice
Cases in which a transit procedure in connection with an export procedure is terminated by a German Customs office of destination with the competence of a “customs office of exit - inland”, are not the rule. According to Customs law, a Customs office situated in the inland may act as a Customs office of exit if the goods are exported by rail, post, air or sea. It is necessary that the goods are intended to leave the Customs territory of the EU based on a single transport contract by rail, post, air or sea.
If a transit procedure is terminated by a Customs office of destination with the competence “customs office of exit - inland”, an Ausgangsvermerk is automatically created to terminate the export procedure. At this point in time, however, it is uncertain whether the goods will reach a third country. The requirements of a zero rated export supply are not fulfilled. In this case, an Ausgangsvermerk for VAT purposes will no longer be issued. Even before May 17 2014, in these sorts of cases the requirements of a zero rated export supply were not met, though an export notice was issued.
ATLAS Release 8.5 does not change the legal situation, but rather clarifies it. Companies that carry out export procedures as described above, will no longer be able to use the Ausgangsvermerk for VAT purposes. These companies need to ensure that they obtain a permitted alternative proof of export, for example, a way bill, a bill of lading or a certificate of the freight forwarder (so-called Spediteursbescheinigung). Affected companies should also check whether the correct documentation for past export supplies is available.
Christian Salder (firstname.lastname@example.org), a lawyer and certified tax consultant, is a partner of KÜFFNER MAUNZ LANGER ZUGMAIER – KMLZ, the principal Germany correspondents of the indirect tax channel on www.internationaltaxreview.com.