V R 3/25: good-faith protection without the entry certificate — the time of supply decides

Federal Fiscal Court (BFH), judgment of 18 December 2025 — V R 3/25, ECLI:DE:BFH:2025:U.181225.VR3.25.0 · Full text (PDF)

The case

In 2018 a tax adviser, trading in his own right, offered a car for sale on an online platform. The buyer was a Romanian company (G), represented by its managing director A. Before concluding the deal, the seller obtained a qualified confirmation of G’s VAT identification number from the Federal Central Tax Office (BZSt) — dated the day before the sale — and requested a commercial register extract showing A as managing director. On collection, the person collecting paid the purchase price in cash, identified himself as A with a photographic identity document (the seller copied its front side), and undertook in the written sale contract to export the vehicle to Romania and to deregister it in Germany. The entry certificate (Gelangensbestätigung) handed to the collector was never returned despite repeated reminders (para. 1).

It later emerged that G had declared no intra-Community acquisition and that the car, once deregistered, had been re-registered in Germany. The tax office refused the exemption; the Hesse Fiscal Court upheld that refusal on the ground that, without an entry certificate, the documentary evidence was incomplete — and with it any basis for good-faith protection under section 6a(4) of the VAT Act (UStG); the seller, it said, could have protected himself by taking a deposit (paras 2-4). The Fifth Senate set the judgment aside and allowed the claim (para. 11).

The court’s key reasoning

The headnote: at least since section 17a of the VAT Implementing Regulation (UStDV), as amended with effect from 1 October 2013, the grant of good-faith protection under section 6a(4) sentence 1 UStG does not require the trader to hold an entry certificate within the meaning of section 17a(2) no. 2 UStDV (headnote; paras 11, 14).

The EU-law frame: section 6a(4) sentence 1 UStG implements the Teleos case-law in conformity with the Directive: a supplier acting in good faith, who has presented evidence establishing his right to the exemption at first sight, cannot be made to account for the VAT afterwards where he took every reasonable measure in his power (para. 13). Since Article 138 of the VAT Directive does not make the exemption dependent on possession of specific evidence (CJEU, judgment of 13 November 2025 — C-639/24, FLO VENEER, para. 17), what good-faith protection requires is prima facie documentary evidence — which, as a matter of EU law, need not be an entry certificate (para. 15).

National law points the same way: the opening sentence of section 17a(2) UStDV names the entry certificate merely as one example (“in particular”, para. 17); the regulation’s explanatory memorandum makes clear that the documentary proof may be furnished “by all admissible means of evidence” (Bundesrat printed paper 66/13, p. 10; para. 18). The systematic point is decisive: under section 13(1) no. 8 UStG, in the case of section 6a(4) sentence 2 UStG the tax arises at the time of supply — so it must also be settled at the time of supply whether the supplier enjoys good-faith protection or not (para. 19). A certificate which, if truthfully issued, “can by its nature exist only after the transaction has been completed” cannot therefore be made a precondition of that protection (para. 23). It suffices that the customer gives an assurance that he will transport the goods to the rest of the Community — corresponding to section 17a(2) no. 4 UStDV in its pre-2012 version — provided the trader at least has the entry certificate promised to him; no documentary formalities attach to that promise (paras 22, 24). The contrary view (good-faith protection in collection cases only upon receipt of the entry certificate) is expressly rejected (para. 24).

No substitute burdens: the supplier may not be referred to a contractual deposit or to retaining the vehicle registration document Part II — these would be “requirements affecting the purchase price without any direct evidential nexus”, obstructing cross-border trade (para. 25). Nor does the diligence of a prudent businessman require futile post-supply attempts to chase the certificate (para. 26).

The approved catalogue of care: the claimant had met the evidential duties “as to their kind”; the export assurance in the sale contract sufficed, since the destination followed from the invoice address and the contract (para. 28). His diligence: qualified BZSt confirmation dated the day before the sale, commercial register extract, identity and authority check with comparison of the photograph, contractual export and deregistration undertaking (para. 31). To demand more — such as a copy of the reverse of the identity document to compare signatures — would, in the Senate’s words, “overstretch the standards of care” (para. 32). No reference to the CJEU was called for; assessing good faith and reasonable measures is a matter for the national courts (para. 33).

Where the decision sits in the case-law

The judgment recalibrates the German good-faith doctrine against the CJEU line of Teleos (judgment of 27 September 2007 — C-409/04) and Mecsek-Gabona (judgment of 6 September 2012 — C-273/11): legal certainty requires that taxable persons know their tax obligations before concluding a transaction (para. 20). The older BFH case-law, which tied good-faith protection to formally complete evidence “as to its kind”, is not abandoned but re-measured for the law in force since 1 October 2013: it rested on the old “should” provision of section 17a(2) UStDV and cannot be carried over unchanged to the open evidential regime (para. 21). By invoking FLO VENEER (para. 15), the Senate also extends the CJEU’s most recent anti-formalism line into the field of good-faith protection. At the same time the decision marks the counterpoint to BFH XI R 1/20 (dossier): there, good-faith protection failed because the customer’s information was merely unclear and the supplier had not clarified it — here it succeeds, because the information was false and the documented verification trail at the time of supply was complete.

The literature

The Senate expressly draws on the voices that make the time of supply the yardstick: Wäger, UR 2013, 81 (93), and Wäger, in: Birkenfeld/Wäger, Umsatzsteuer-Handbuch, § 6a note 206 (no documentary formalities for the promised certificate); Neeser, in: Umsatzsteuerforum/BMF (eds), 100 Jahre Umsatzsteuer in Deutschland, 2018, p. 829 (840 et seq.); Suabedissen, in: Sölch/Ringleb, Umsatzsteuer, § 6a note 138 (all cited at paras 23, 24, 26). The rejected contrary view: Frye, in: Rau/Dürrwächter, UStG, § 6a note 860 (para. 24); the Senate likewise distances itself from the view that prudent diligence requires futile post-supply reminders (Huschens, UVR 2013, 44 [50]; para. 26). The commentary literature had anticipated the outcome: Robisch points out that the case-law developed for the old customer-assurance regime cannot be applied by analogy to the entry certificate, because the latter is typically issued only after the event (Robisch, in: Bunjes, UStG, 24th ed. 2025, § 6a paras 82 et seq.).

Three levels — kept strictly apart

Official ruling: At least since the entry into force, on 1 October 2013, of section 17a UStDV as amended by the Eleventh Amending Regulation of 25 March 2013, the grant of good-faith protection under section 6a(4) sentence 1 UStG does not presuppose that the trader holds an entry certificate within the meaning of section 17a(2) no. 2 UStDV (headnote).

Administrative practice: The administration regulates the BZSt confirmation procedure in para. 18e.1 of the VAT Application Decree (UStAE); under para. 6a.8(6) sentence 1 UStAE, checking an evidently invalid VAT identification number only after the transaction excludes good-faith protection, and para. 6a.8(7) UStAE demands heightened care in cash and collection cases. For supplies from 1 January 2020, para. 6a.1(12) UStAE treats the customer’s valid VAT identification number as a condition of the exemption. The UStAE contains no rule making good-faith protection dependent on possession of an entry certificate; no express administrative response to V R 3/25 has yet been published.

Our conclusion for the defence: In our assessment, the judgment moves the dispute to where it belongs: the documented state of knowledge and verification at the time of supply. For the first time, the Senate has approved a concrete catalogue of care for collection cases — qualified BZSt confirmation before conclusion of the contract, register extract, identity and authority check, contractual export undertaking, promised entry certificate — and has simultaneously drawn a line against escalation in hindsight (“overstretch the standards of care”, para. 32). A trader who keeps and files that verification trail per transaction will in future argue from an approved benchmark rather than against open-ended evaluation. That is our own reading; the assessment remains case-specific (paras 30, 33), and the judgment guarantees no protection where warning signs were visible.

Defence levers

• Invoke the benchmark catalogue: rely on the elements approved at para. 31 as the standard accepted at the highest judicial level for collection cases — including cash payment and a first-time customer, both known to the Senate and not treated as fatal (para. 32).
• Fix the time of supply: any requirement that can logically be met only after the supply (entry certificate, chasing reminders) is, under paras 19, 23 and 26, no permissible measure of good faith.
• Repel substitute burdens: references to deposits or to withholding the registration document Part II are, under para. 25, impermissible requirements lacking any evidential nexus.
• Raise the overstretch objection: meet escalating hindsight demands (reverse of the identity document, signature comparisons) with the formula of para. 32 — they overstretch the standards of care.
• Document the customer’s assurance: secure the customer’s contractual transport undertaking with the destination (invoice address, contract) and the promise of the entry certificate as the documentary foundation (paras 22, 24, 28).

Defence assessment: POSITIVE · Keywords: section 6a(4) UStG, entry certificate, time of supply, catalogue of care, collection case, qualified BZSt confirmation

FAQ

Source box

Decision: Federal Fiscal Court (BFH), judgment of 18 December 2025 — V R 3/25, ECLI:DE:BFH:2025:U.181225.VR3.25.0 (court below: Hesse Fiscal Court, judgment of 1 July 2024 — 1 K 1247/21).

Literature: - Wäger, UR 2013, 81 (93) (time of supply as the yardstick; relied on by the Senate at para. 23). - Wäger, in: Birkenfeld/Wäger, Umsatzsteuer-Handbuch, § 6a note 206 (no documentary formalities for the promise; para. 24). - Neeser, in: Umsatzsteuerforum/BMF (eds), 100 Jahre Umsatzsteuer in Deutschland, 2018, p. 829 (840 et seq.) (paras 23, 26). - Suabedissen, in: Sölch/Ringleb, Umsatzsteuer, § 6a note 138 (para. 23). - Frye, in: Rau/Dürrwächter, UStG, § 6a note 860 (contrary view; rejected at para. 24). - Robisch, in: Bunjes, UStG, 24th ed. 2025, § 6a paras 82 et seq. (old case-law not transferable to the entry certificate).

Related decisions: CJEU, judgment of 27 September 2007 — C-409/04, Teleos; CJEU, judgment of 6 September 2012 — C-273/11, Mecsek-Gabona; CJEU, judgment of 13 November 2025 — C-639/24, FLO VENEER; BFH, judgment of 12 May 2011 — V R 46/10; BFH, order of 22 November 2023 — XI R 1/20 (dossier).