Request for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 7 February 2024 – Finanzamt Hamburg-Altona v XYRALITY GmbH
(Case C-101/24, Finanzamt Hamburg-Altona)
Language of the case: German
Referring court
Bundesfinanzhof
Parties to the main proceedings
Appellant in the appeal on a point of law: Finanzamt Hamburg-Altona
Respondent in the appeal on a point of law: XYRALITY GmbH
Questions referred
Under circumstances such as those in the main proceedings, in which a German taxable person (developer) supplied, before 1 January 2015, a service by electronic means to non-taxable persons (end customers) established within the territory of the European Union, via a marketplace for applications operated by an Irish taxable person, is Article 28 of Council Directive 2006/112/EC 1 of 28 November 2006 on the common system of value added tax to be applied, with the result that the Irish taxable person is treated as if it had received those services from the developer and supplied them to the end customers, because the marketplace for applications did not name the developer as the supplier of the service and show German VAT until it did so in the order confirmations issued to the end customers?
If the first question referred is answered in the affirmative: Is the place of supply of the fictitious service supplied by the developer to the marketplace for applications under Article 28 of [Directive 2006/112] in Ireland, by virtue of Article 44 of [that directive], or in the Federal Republic of Germany, by virtue of Article 45 [thereof]?
If, by virtue of the answers to the first and second questions referred for a preliminary ruling, the developer has not supplied any services in the Federal Republic of Germany: Is the developer subject to a tax liability for German VAT under Article 203 of [Directive 2006/112], on the ground that the marketplace for applications, acting in accordance with an agreement, named the developer as the supplier of the service and showed German VAT in the order confirmations it sent by email to the end customers, even though the end customers are not entitled to deduct input VAT?
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1 Council Directive of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).