The BFH has held that a tax consulting GmbH collected their books of account are not subject to sales charges (Istbesteuerung) must pay tax. Revenues must therefore be taxed prior to receipt of pay (BFH, Judgement of 22.7.10 - VR 4 / 09, published on 17.11.2010).
Background Information:
The Tax Office may, upon request, that a business whose total turnover in the previous calendar year more than 250,000 euros: amount (in time 07/01/2009 to 12/31/2011 EUR 500,000) has, or from the obligation to keep books and on the basis of annual inventories on a regular basis to make statements, according to § 148 AO is exempt, or if he revenues from activities as members of a profession within the meaning of § 18 para 1 No 1 Income Tax Act performs, that the tax is collected according to the agreed fees, but according to the charges calculated (§ 20 para 1 sentence . UStG 1) "
The BFH is continuing from:
Due to the legislative purpose and legislative history of § 20 para 1 sentence 1 No. 3 VAT Law is the option for taxation of revenues from activities as members of a profession in addition to the text of the law also requires that a self-employed operating company is obliged neither to tax nor to non-tax rules for accounting and not voluntarily books out. The legal form of the undertaking does not in this context.
Note
The verdict of the BFH is essentially had previously decided, but modified this to the effect that accountants and tax consultant firms are not entitled to Istbesteuerung if they do voluntarily and their profits by Comparison was determined. The BFH support of that assertion, that the Istbesteuerung for revenues from professional activities in accordance with § 20 para 1 sentence 1 No. 3 VAT Law requires that the contractor is not subject to accounting records. Accordingly, it would be illogical, an entrepreneur, but is not required to keep accounting books out but voluntarily to allow the Istbesteuerung. The ruling is also of fundamental importance in so far as the BFH, the so-called nominal taxation, after the entrepreneur has his performance been with the service provision and not be taxed until the fee collection holds constitutional. While the entrepreneur is at the desired contrast has sent the Istbesteuerung to pre-finance the VAT be obliged, as he possibly sales tax for his services prior to the collection of sales tax from its customers to transfer to the Treasury. According to the BFH that difference is not objectionable, however, since the set taxation of the entrepreneur in uncollectibility the right to payment under § 17 para 2 No 1 UStG deleted and the concept of non-recovery to preserve the tax equality of burdens shall be made.
source: BFH online
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