In our blog post from May (on the ruling of the Federal Administrative Court of 7 December 2023, A-1573/2022), we looked at the function of an online platform in the area of delivery services. The case was referred to the Federal Supreme Court (FSC). In its decision, the Federal Supreme Court did not follow the lower court and qualified the platform as a mere intermediary for food deliveries.
BACKGROUND
Refresher: The taxable person operated an online platform via which customers could order food and have it delivered to them. Various restaurants offered their dishes on the platform. The platform took the view that it itself was the supplier of the meals (and did not merely mediate between customers and restaurants). Accordingly, it invoiced "its" services (delivery of the dishes including delivery service fees) to the customers at the reduced tax rate. The FTA, on the other hand, took the view that the platform was merely an intermediary between restaurants and customers. Accordingly, only the restaurants were allowed to invoice their services at the reduced rate. The services provided by the platform itself were to be taxed at the standard rate. The Federal Administrative Court (FAC) agreed with the taxpayer's view. It based its decision essentially on the presumed perception of the customers when using the platform (selection of meals, ordering, payment and delivery). However, the FAC did not consider the fact that, for example, the general terms and conditions (GTC) expressly identified the platform as an intermediary to be of such importance as to override the overall perception.
The Federal Administrative Court (FAC) agreed with the taxpayer's view. It based its decision essentially on the presumed perception of the customers when using the platform (selection of meals, ordering, payment and delivery). However, the FAC did not consider the fact that, for example, the general terms and conditions (GTC) expressly identified the platform as an intermediary to be of such importance as to override the overall perception.
JUDGEMENT OF THE FEDERAL COURT
From 8 August (9C_67/2024)
In its decision, the FSC focuses on objective criteria such as general terms and conditions and invoice documents when analysing the presumed customer perception. In particular, the platform had named the partner restaurants and these were known to the customers when using the platform and, from the FSC's point of view, it was always recognisable to the users that they obtained the food directly from the partner restaurants and not from the platform (through corresponding information during the ordering process and in the GTC).
CONCLUSION
The judgement of the FSC should provide more legal certainty for taxpayers, as it gives greater weight to written documentation in the form of GTCs, for example. As an overall view of the circumstances in the specific case is decisive, the considered design of the external appearance remains of crucial importance.
