Leasing of Movable Items in the Cross-border Carousel Business
Ministry of Finance Bavaria, Tax Guidelines from Sept. 15, 1998, 36 - S7160 - 43/13 - 40446
The superior federal and state tax authorities discussed the following greatly condensed situation:
A U.S. lessor leases a lease item (e.g., streetcars) long-term from the domestic owner (so-called main lease contract, 1st and 2nd level) often using an intermediate foreign company (with seat in the Netherlands or the Cayman Islands). At the same time, the lease item is leased back to the owner and now current lessee if applicable via the intermediate lessee (sublease contract, 1st and 2nd level). All leasing fees are paid in advance and in full.
Due to certain tax effects, which are generated for the U.S. lessor, it is possible to keep the leasing fees in the sublease contracts lower than in the main lease contracts, which results in a "net profit value" for the lessee, usually immediately at his disposal.
By a majority, the superior federal and state tax authorities are of the following opinion regarding the VAT issues concerning the lessee:
The civil law structure is interpreted in accordance with the economic substance in such a way that the lessee provides a special service, which consists of enabling the U.S. investor to procure tax advantages in the USA. The compensation is the "net profit value" paid out to the lessee. According to Sect. 3a para 1 German VAT-Law, the locality of the service is domestic. The service is thus taxable and not tax-exempted.
The viewpoint of this legal opinion also applies to similar situations.
