Liability for operators of electronic marketplaces

As of January 1, 2019, new regulations became effective on record keeping obligations and the secondary liability of operators of electronic marketplaces pursuant to Section 22f and 25e UStG.

Under the new rules, operators of electronic marketplaces are, on the one hand, obliged to record the turnover arising from their platforms as well as to hold a certificate from the tax office confirming the tax registration of the businesses operating on the marketplace pursuant to Section 22f UStG. In the event of a violation of these record keeping obligations and the related duties of care, a liability for the unpaid tax from the sales initiated on the electronic marketplace arises pursuant to Section 25e UStG.

Just in time before the liability provisions of Section 25e UStG come into effect (March 1, 2019 for sales performed by businesses domiciled in a third country and October 1, 2019 with regard to all other businesses), the Federal Ministry of Finance (BMF) has now commented on selected application issues in a letter dated January 28, 2019 and in a supplementary letter dated February 21, 2019. In addition to a specification of the records required pursuant to Section 22f (1) UStG with regard to the turnover generated on the platform (amount of turnover, place of supply, etc.), two transitional provisions granted by the BMF are of particular importance in practice.

Firstly for reasons of simplification, the BMF has allowed the record keeping obligations of Section 22f UStG to be observed in line with the application of secondary liability pursuant to Section 25e UStG, i.e. only from March 1, 2019 or October 1, 2019 onwards. In addition, the BMF has clarified that until April 15, 2019 there will be no objection if the operator of an electronic marketplace can only provide the application for a certificate pursuant to Section 22f (1) para. 2 UStG instead of the certificate itself. This apparently aims to account for the fact that the tax authorities are unable to respond to all applications in due time.

Additional work awaits the tax authorities in so far as operators of electronic marketplaces who have reasonable doubts regarding the authenticity of a certificate submitted by an online trader can apply to the responsible tax authority for confirmation of authenticity. This procedure had to be introduced since the electronic database envisaged in Section 22f (1), sentence 6 UStG is not yet available. According to Section 27 (25), sentence 3 UStG, certificates will be issued in paper form until its introduction, thus resulting in an increased risk of counterfeits.

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