Federal Fiscal Court (BFH), order of 22 November 2023 — XI R 1/20, ECLI:DE:BFH:2023:B.221123.XIR1.20.0 · Full text (PDF)
Note: the decision is an order under section 126a of the Fiscal Court Code (unanimous dismissal of the appeal without an oral hearing), not a judgment.
The case
In 2012 a German trader sold used event technology to the Austrian company A GmbH; A in turn sold the equipment on to the Kazakh K Ltd. under a “Sales Contract” — terms “ex works Germany”, transport to be organised by the buyer (para. 1). K inspected the goods in Germany, had already paid the price in full and bore the risk under the contract; collection was carried out by a Dutch forwarder, the goods first went to a Dutch warehouse and were consigned from there to Kazakhstan (paras 2-3, 45). The paperwork pointed in two directions: the CMR consignment note named the claimant as consignor, while the export accompanying document for the Netherlands-Kazakhstan leg named A (paras 3, 51).
The claimant treated her supply to A as an exempt intra-Community supply. Following an external audit the tax office refused the exemption; the Münster Fiscal Court agreed: there was a chain transaction, the movement of the goods was not attributable to the claimant’s supply, and good-faith protection failed because A had made no incorrect statements (paras 5-6). The Eleventh Senate dismissed the appeal (paras 16, 20).
The court’s key reasoning
No mandatory joinder of the first acquirer: the decision on the first supplier’s exemption does not directly shape the first acquirer’s legal position; section 60(3) sentence 1 of the Fiscal Court Code does not apply (headnote 1; paras 23-25). Nor does EU law prevent the tax authorities of one Member State from treating transactions differently from another Member State (para. 26).
Attribution of the movement by overall assessment: for chain transactions under the old law (section 3(6) sentences 5 and 6 UStG, old version), what matters is whether the first acquirer transferred to the second acquirer the power to dispose of the goods as owner while they were still in Germany (headnote 2; para. 42). Here the Fiscal Court was entitled to conclude from full payment, inspection, transfer of risk and collection arranged by K that K obtained that power on handover to the forwarder in Germany (paras 44-46) — so the movement belonged to the second supply, making the first supply a “dormant” domestic supply, taxable in Germany and exempt neither as an export nor as an intra-Community supply for want of a movement of the goods (paras 47, 53).
The CMR consignment note proves the wrong thing: a duly issued consignment note may, under Article 9(1) CMR, furnish rebuttable proof of the conclusion and content of the contract of carriage — “However, it furnishes no proof of when and where (still in Germany or already abroad) A transferred to K the power to dispose of the event technology” (headnote 3; para. 50). Nor does anything turn on the administrative category of a “broken” consignment: what matters is not transport responsibility but the transfer of the power of disposal and the physical movement of the goods (headnote 4; para. 49, expressly distancing the court from paras 3.14(4) sentence 1 and 3.14(7) sentence 1 of the VAT Application Decree (UStAE), old version; paras 42, 49).
Good-faith protection fails on the quality of the information: section 6a(4) sentence 1 UStG (old version) requires incorrect statements by the customer. Here A had made “no incorrect, but at most unclear statements” — it remained unclear, in particular, who had commissioned the forwarder. The Senate then states the duty on which the case turns: “Where circumstances on which exemption or taxability depend are unclear, the diligence of a prudent businessman within the meaning of section 6a(4) UStG (old version) requires those unclear circumstances to be clarified. That did not happen here” (para. 57).
Where the decision sits in the case-law
The order consolidates the CJEU line on attributing the moved supply within a chain — EMAG Handel Eder (judgment of 6 April 2006 — C-245/04), Euro Tyre (judgment of 16 December 2010 — C-430/09), VSTR (judgment of 27 September 2012 — C-587/10), Toridas (judgment of 26 July 2017 — C-386/16), Kreuzmayr (judgment of 21 February 2018 — C-628/16), AREX CZ (judgment of 19 December 2018 — C-414/17) — and the BFH’s own decisions XI R 15/14 and XI R 18/18 (paras 42, 45, 61). For legacy cases the power-of-disposal assessment remains decisive; whether the position differs under section 3(6a) UStG (from 2020) is left open (paras 31, 62).
On good-faith protection, the order draws the dividing line which V R 3/25 (dossier) later confirms from the other side: section 6a(4) UStG protects the supplier taken in by incorrect statements he could not see through despite the diligence of a prudent businessman — it does not protect the supplier who lets an objectively unclear transport and attribution situation stand instead of clarifying it. Incorrect statements plus a documented verification trail: protection (V R 3/25). Unclear statements plus an omitted enquiry: no protection (XI R 1/20, para. 57). Between those poles, your own file decides.
The literature
Wäger reads the order as a case study in the “almost typically opaque” fact patterns of chain transactions and distils the practical consequence: for the first supplier there is “in general only one approach” to escaping taxability — rebutting the assumption of a chain transaction itself, which here might at most have been conceivable through the splitting of the transport operations (Wäger, UR 2025, 81 [98 et seq.]). On joinder, the Senate rejects the contrary view of Heuermann, in: Sölch/Ringleb, Umsatzsteuer, § 3 note 496a (para. 25); on the irrelevance of transport responsibility it draws on Frye, in: Rau/Dürrwächter, UStG, § 6a note 219 (para. 49).
Three levels — kept strictly apart
Official ruling: (1) In a chain transaction with three parties and two supplies, the first acquirer need not be joined as a mandatory party to the first supplier’s litigation. (2) Under the old law, the attribution of the movement of the goods depended, on an overall assessment of all circumstances, on whether the first acquirer transferred the power to dispose of the goods as owner to the second acquirer while the goods were in Germany. (3) A duly issued and signed CMR consignment note furnishes no proof, under Article 9(1) CMR, of that transfer. (4) Whether a “broken” consignment exists is irrelevant to that question (headnotes 1-4).
Administrative practice: The order expressly departs from the administrative position laid down in the UStAE: neither the criterion of who carried out or commissioned the transport (para. 3.14(7) sentence 1 UStAE, old version; para. 42) nor the category of broken carriage or consignment (para. 3.14(4) sentence 1 UStAE; para. 49) governs the attribution under the old law. There is no express administrative provision on the duty to clarify unclear customer information (para. 57).
Our conclusion for the defence: In our assessment, the order is above all a warning against the silent tax trap of the collection-based chain transaction: a trader who sells “ex works” to an intermediary and allows the end customer to inspect, pay for and arrange collection of the goods in Germany risks holding the dormant, taxable supply — and can afterwards find rescue neither in the consignment note nor in section 6a(4) UStG if the transport and attribution position was visibly open at the time of supply. At the same time, headnote 3 cuts both ways and can serve the defence: if the CMR consignment note does not prove the transfer of the power of disposal, the tax administration equally cannot rest its own attribution theory on freight papers alone. That is our own evaluation.
Defence levers
- Fix the attribution contractually: before supplying, document who transports or commissions transport and when and where the power of disposal is to pass — the overall assessment (paras 42, 45) starts with the contracts and their actual performance.
- Actively clarify ambiguities: resolve contradictory or open customer statements (who commissions the forwarder?) in writing before the supply and file the exchange — para. 57 turns clarification into a duty of care whose breach costs the good-faith protection.
- Use the freight-paper point both ways: the CMR consignment note proves the place of the transfer of the power of disposal neither for nor against the taxable person (para. 50) — which also denies the authorities a paper shortcut for their attribution theory.
- Test the chain-transaction premise: the first supplier’s defence starts with whether a chain transaction with a single movement of goods exists at all (cf. Wäger, UR 2025, 81 [98 et seq.]) — for instance where the transport operations were genuinely split.
- Treat end-customer contact as a red flag: inspection, payment or collection arrangements by the end customer in Germany (para. 45) endanger your own exemption — in case of doubt, invoice without VAT only once the attribution is clarified.
Defence assessment: NEGATIVE · Keywords: chain transaction, power of disposal, CMR consignment note, broken consignment, section 6a(4) UStG, duty to clarify
FAQ
I hold a duly issued CMR consignment note naming me as consignor — is that not sufficient proof of my exempt supply?
No. Under Article 9(1) CMR the consignment note furnishes rebuttable proof of the conclusion and content of the contract of carriage and of the taking over of the goods — but precisely not of when and where the power of disposal passed within the chain (para. 50). Yet that is what a chain transaction turns on: if the intermediary conferred the power of disposal on the end customer while the goods were still in Germany, your supply is the dormant, taxable one (paras 42-47). What counts are the contracts, their actual performance and the parties’ interests — not the consignor line on a freight document.
My customer was vague about the transport arrangements. Can I still rely on good-faith protection later?
That is risky. Section 6a(4) UStG protects you only where the claim to exemption rests on incorrect statements by the customer which you could not detect despite the diligence of a prudent businessman (para. 55). Merely unclear statements are not enough — indeed, where circumstances on which the exemption depends are unclear, that very diligence requires you to clarify them (para. 57). A trader who leaves the open question standing loses both: the objective exemption and the good-faith protection. A written enquiry before the supply, properly filed, is therefore not a formality but the points lever on the track.
Source box
Decision: Federal Fiscal Court (BFH), order of 22 November 2023 — XI R 1/20, ECLI:DE:BFH:2023:B.221123.XIR1.20.0, BStBl II 2024, 530 (section 126a of the Fiscal Court Code; court below: Münster Fiscal Court, judgment of 12 June 2019 — 5 K 1360/16 U, EFG 2020, 558).
Literature: - Wäger, UR 2025, 81 (98 et seq.) (analysis of the order; defence approach via rebutting the chain-transaction premise). - Heuermann, in: Sölch/Ringleb, Umsatzsteuer, § 3 note 496a (mandatory joinder of the intermediary; rejected by the Senate, para. 25). - Frye, in: Rau/Dürrwächter, UStG, § 6a note 219 (power of disposal rather than transport responsibility; para. 49).
Related decisions: CJEU, judgment of 6 April 2006 — C-245/04, EMAG Handel Eder; CJEU, judgment of 16 December 2010 — C-430/09, Euro Tyre; CJEU, judgment of 27 September 2012 — C-587/10, VSTR; CJEU, judgment of 26 July 2017 — C-386/16, Toridas; CJEU, judgment of 21 February 2018 — C-628/16, Kreuzmayr; CJEU, judgment of 19 December 2018 — C-414/17, AREX CZ; BFH, judgment of 25 February 2015 — XI R 15/14; BFH, judgment of 11 March 2020 — XI R 18/18; BFH, judgment of 18 December 2025 — V R 3/25 (dossier).
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Legal position as at 19 August 2026. This page is no substitute for advice in the individual case.
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