In its ruling of 12.05.2022 V R 19/20, the #Bundesfinanzhof (#BFH), referring to its ruling of 26.04.2012 – V R 2/11 (BFHE 237, 286 = BStBl II 2012, 634), has once again commented on who is carrying out a commercial or professional (and thus entrepreneurial taxable) activity according to § 2 para. 1 #Umsatzsteuergesetz (#UStG). According to § 2 para. 1 sentence 3 UStG, this is the case for any sustainable activity to generate #income, even if there is no #intention to generate profit.

To all appearances, the present case concerned a #reseller within the meaning of § 25a para. 1 no. 1 #UStG, who acquired items at #household liquidations and auctioned them on #eBay. In five years, it obtained with 3.076 #Versteigerungen #Einnahmen at a value of approx. 370.000 €. This had come out by a tax investigation audit. The legal basis for this is found in § 208 #Abgabenordung – AO (tasks, competence) and § 404 AO (rights and obligations, special powers).

The #BFH has referred the matter back to the #Finanzgericht for a different hearing and decision. Starting point of its considerations is § 12 para 1 #UStG, according to which the tax for each taxable #revenue amounts to 19% of the #assessment basis (§§ 10, 11, § 25 para 3, § 25a para 3 and 4 #UStG). The #assessment basis is according to § 10 para. 1 sentence 1 #UStG the #remuneration. The legally owed #VAT is to be deducted (§ 10 para. 1 sentence 2 #UStG; cf. also Art. 78 sentence 1 letter a of Council Directive 2006/112/EC of 28.11.2006 on the common #VAT system – #MwStSystRL). The #gross income is reduced accordingly.

If no #VAT is due on the #purchase of the #goods (Section 25a (1) no. 2 sentence 2 letter a #UStG), the #VAT is to be assessed according to the #differential amount to the #purchase price. In the absence of #records in accordance with § 25a para. 6 sentence 1 UStG, the #purchase price can be estimated – even with a significant safety margin to the detriment of the #reseller – (§ 162 #AO), whereby the #tax claim can nevertheless be considerably reduced. This is because these #recording obligations are not part of the material requirements of the #differential taxation, which is why a violation does not generally result in the refusal of the #differential taxation.