Real-estate transactions and VAT

The sale and transfer of real property in Germany is either not taxable (if it constitutes a transfer of a going concern) or exempt from VAT due to a specific exemption rule. In the latter case, however, the seller may opt for VAT to apply if the purchaser also qualifies as an entrepreneur. The exercise of this option is generally essential to the seller if it is to preserve the input tax deductions it has already made.

Against this background, many VAT clauses drafted in the past provided for an option for VAT to apply in the event that the fiscal authorities did not accept that transfer of a going concern treatment applied…

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