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Tax consequences for building in of bigger gasoline tanks by freight carrier

08-27-2013 11:09 AM CET | Politics, Law & Society

Press release from: bunk-alliance Rechtsanwaltsgesellschaft mbH

Fright carriages very often have bigger gasoline tanks built into their vehicles, which have a bigger capacity than the gasoline tanks installed by the manufacturer. Reason for this is usually that trucks are equipped by the main coachbuilder according to the individual needs of each haulier e.g. for transport of containers, cars or alike. But it can lead to problems, if the company gets gas in other European countries and drives back to Germany with the fueled truck.
The custom senate of the Financial Court Düsseldorf now presented a case to the European Court of Justice. The proceedings (court case 4 K 3691/12 VE) are about a truck, in which - after delivery by the manufacturer - a coachbuilder placed the original tank in a different place and in addition installed an additional tank with a capacity of 780 liters. The modification was necessary in order to load containers on the truck. A corresponding modification would not have been common by the manufacturer. The freight carrier that used the vehicle fueled the truck in the Netherlands. After refueling, the driver of the truck crossed the border to Germany in order to conduct tours in Germany. The customs administration fixed energy taxes against the freight carrier for the two tanks with diesel. No tax exemption would be applicable since both tanks were not installed as a standard. Against that decision the freight carrier filed a complaint.
The Financial Court Düsseldorf stayed the proceedings in order to present the case to the European Court of Justice. Although energy tax is to be fixed when diesel fuel is brought into the country, the fuel is exempted from taxes if and in so far as it is transported in a regular and by the manufacturer installed tank. Subsequently build-in larger or additional tanks however are not covered by the tax exemption. But it is doubtful under European Law whether only build-in tanks by the manufacturer are covered by the tax exemption. For the manufacturing of a truck often several companies are involved in order to prepare the vehicle in accordance with the requirements of the freight carrier. A lot suggests that the tax exemption should also extent to tanks build-in by dealers or coachbuilders. Moreover the refueling abroad is not a typical case of tax abuse but only makes use of the price differences in the individual EU member states.
“In the past, a number of such cases were taken up by the customs offices in Germany” says Dr. Heide Bauersfeld, presiding judge and member of the customs senate of the Financial court Düsseldorf. “The customs administration fixes energy tax on fuel, which was imported in non-standard tanks, in those cases. The question presented to the European Court of Justice is therefore essential for a variety of companies.”
“The cases, in which private individuals installed enlarged or additional tanks in their cars and then refueled them abroad can be judged very differently”, warns Dr. Nils Trossen, spokesman of the Financial Court. ”If in these cases foreign fuel is purposefully used for domestic trips, the drivers have to expect energy tax being fixed upon them. In bigger or repeated cases this can even lead to criminal investigations with regard to fiscal law.”
Source: Ministry of Justice of North Rhine Westphalia.

Remark: This case is likely to have significance not only for German companies but also for companies from other European countries, which enter Germany with non-regular gasoline tanks. In such cases some German custom offices have not only fixed energy taxes but also initiated criminal proceedings for tax offences. Not only were freight carrier effected by this but also companies delivering their own goods to German customer. We are therefore looking forward to the decision of the European Court of Justice.

The clients of our law firm are mainly foreign companies (non-EU and EU-companies) as well as German companies. We serve middle-sized companies (mainly corporations) as well as bigger companies listed on the stock exchange.
In addition to companies of the financial service sector (banks and investment companies), most of our clients belong to the manufacturing trade or the industrial sector. Our client's industrial focus is, among others engineering (mechanical and plant engineering), furniture and food industry and the transportation sector, however we are also experienced in the construction sector. The issues arising with the business activities of those companies with regard to fiscal and business law, under which we also define issues with regard to individual and collective labour law, therefore belong to our consulting spectrum. In case of acquisition of companies, we undertake the transaction advisory and preparation of documentation as well as a legal due diligence. If fiscal or economical issues arise, we have renowned corporation partners at hand.

Due to the international profile of the law firm, a very important field of consultation naturally is cross-border commercial law and the securitisation of receivables by appropriate means of securitisation, as well as the collection of commercial receivables.

As a result of our expertise in national and international insolvencies and restructurings, another important scope of our services is the consultation in reorganization/restructuring and insolvency related matters. With regard to the European insolvency regulation (Counsel Regulation) (E.C.) (No.1346/2000) we possess profound knowledge and experience, which has been maintained after having been tried and tested in practice.

Due to previous activities of the founder of the law-firm as "workout" specialist for large credits in a German financial institution, we are able to advise our clients from the point of view of a potential creditor as well as the debtor company's view. Our founder's strength in mediating between the debtor and financial institutions and negotiate realisable restructuring plans results in acceptable and overall prompt solutions for all participants.

We are members of B.R.S.I (Bundesverband Restrukturierung, Sanierung und Interim Management- Corporate Restructering Associations Germany), BCCG (British Chamber of Commerce in Germany), PZGH (Polskie Zrzeszenie Gospodarzo Handlowe) –Polish Association of Economy and Commerce), GRUR (Deutsche Vereinigung für gewerblichen Rechtsschutz und Urheberrecht e.V. – German Association for the Protection of Intellectual Property) and DAV (Deutscher Anwaltsverein - German Lawyers Association).

Office Worms
bunk-alliance
Goethestr. 15
67547 Worms
Germany

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