Aviation Tax Compliant
With European Community Law
April 2016
On March 2, 2016 the Surpreme Tax Court (BFH) published two fundamental decisions on the applicability of the Aviation Tax Act (LuftVStG), which
he had pronounced on December 12, 2015.1 Therein the BFH confirms both
judgements of the court of lower instance2 while assuming the formal and
material constitutionality of the LuftVStG.3
The BFH states, that the aviation tax was not tob e regarded an excise tax,
neither under national law nor according to european community law [Art.
1 Directive 2008/118/EC], but rather a transactional tax [Art. 106 (1) No. 3
GG (German Constitution)], as it is neither directly nor indirectly tied to the
consumption of aircraft fuel. The staggering of aviation tax rates into short-,
middle-, and long-distance flights did not suffice to justify an exise tax, as
several consumption relevant factors (aircraft type, capacity utilization)
remained unconsidered. Instead, the LuftVSt was tied to the departure of a
passenger by aircraft only.
The BFH furthermore states, that possible violations of the european community prohibition to grant aids [Art. 107 (1) TFEU (Treaty on the Functioning of the European Union)] by preferential treatments within the Aviation
Tax Act, or of the freedom of services [Art. 56 TFEU] or of the general
right of non-discrimination (Art. 18 TFEU) by the obligation to appoint an
aviation tax representative in Germany, did not lead to the rescission of an
aviation tax assessment. The court saw himself able to clearly interpretate
european community law on basis of the existing jurisdiction by the European Court of Justice (ECJ) and did thus not see the necessity to ask the
ECJ for a preliminary ruling.
Lastly, the BFH also declined violations of international aviation treaties
(Chicago Convention, Open-Skies-Treaty). Whether these treaties constituted public claims of aviation companies at all, i.e. whether airlines were
able to plead on basis of these treaties in a course of a lawsuit, remained
unanswered within the BFH rulings.
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2
3
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Steuerberatungsgesellschaft
BFH rulings of December 1, 2015, VII R 51/13 and VII R 55/13
FG Berlin-Brandenburg rulings of May 16, 2013, 1 K 1075/11 and 1 K 1074/11
BVerfG ruling of November 5, 2014, 1 BvF 3/11, BGBl I 2914, 1764, BVerfGE 137/350
www.crowehorwath-ffm.de
Consequences
By the fundamental decisions of the Supreme Constitutional Court (BVerfG)4
and the BFH5, the legitimacy of the LuftVStG was now confirmed thoroughly
and by all courts of final appeal in Germany.
Aviation tax assessments can therefore no longer be objected with reasons
of outstanding decisions before federal courts.
All objections filed against aviation tax assessments in the past will presumably be collectively rejected as unsubstantiated by the Main Customs
Offices (HZA) within the comings weeks, if not previously revoked.
Against rejected objections legal action before a tax court is admissible.
Your contact
Michael Schmitz
Managing Partner
+49 69 97886 6
michael.schmitz@crowehorwath-ffm.de
Sebastian Seidel
Senior Tax Assistant
+49 69 97886 747
sebastian.seidel@crowehorwath-ffm.de
4
5
Audit | Tax | Advisory | Risk
© 2016 INTERTAX TREUHAND GmbH
Steuerberatungsgesellschaft
Fn 3
Fn 1
www.crowehorwath-ffm.de