Box-office success in the million in dispute over sales tax on cytostatic drugs

BSG: clinics would have been able to avoid fiscal damage, and must

In million dispute with the tax on cancer drugs the statutory health insurance can claim a refund of the hospitals. The, the First Senate of the Federal social court (BSG) has on 9. April 2019 in Kassel, Germany, ruled (Az.: B 1 KR 5/19 R). After that, clinics need to run but basically no risky processes, in order to relieve the health insurance companies.

The dispute is the sales tax on cytostatic drugs for outpatient chemotherapy. These are manufactured in the hospital pharmacy individually for each patient. According to Treasury estimates, over 400 hospitals are faced with demands for repayment of a total of over 100 million euros. The extent to which the BSG judgment, is open.

Previously, health insurance companies and hospitals were assumed to be coincident, that in the case of outpatient chemotherapy, the cytotoxic drugs sales are taxable. In the pharmaceutical price agreements (AMPV) between funds and hospitals, it was agreed, therefore, as a rule, that the funds to the net prices, the “applicable Umsatzsteuer“ pay.

In 2014, the Federal Finance court (BFH) ruled, however, in Munich, that also in the case of outpatient chemotherapy in the hospital pharmacy individually manufactured drugs of hospital preparations, is still treatment is attributable to and, therefore, are exempt from VAT. In hundreds of procedures, the funds of the clinics demanded, therefore, the value-added tax.

In 2016, the Federal Ministry of Finance had accepted the BFH case law. It was the hospitals, but the choice of whether you want to correct, retroactively, your VAT returns. For tax purposes, this is up four full calendar years after submitting the tax Declaration is possible.

On the action of the techniker Krankenkasse against the Städtische Klinikum Karlsruhe, the BSG has now decided that the hospitals were insofar as possible, to prevent the stock power of their tax assessments. The submission of a supplementary interpretation of the AMPV: Have funds, and clinics at the conclusion of the contract of the subsequent Federal fiscal court judgment known, they would have agreed that the funds a repayment of unduly paid tax is entitled, to the extent that the clinic “to assert your claim for reimbursement against the tax authorities without the risk of litigation kann“.

In an approach similar to that already in the Federal court of justice (BGH) decided in Karlsruhe, the private health insurance companies. The “complementary Vertragsauslegung“ back referred the court to several cases to the respective lower court. The background of this difference is probably that because of the “Wirtschaftlichkeitsgebots“ in the statutory health insurance, the situation is clear.

For the statutory funds of the BSG further ruled that they can claim a refund even if the sales tax assessments have already been legally established. The clinics are then obliged to pay damages. Because they would have been obligated “in any case at the latest after the judgment of the BFH dated 24.9.2014 to apply for in anticipation of the possible reaction of the tax administration, within the current setting period of the amendment. This would, in view of the cost of freedom of the procedure is reasonable.“

To what extent this BSG case law now takes depends on the individual AMPV. So the dispute went in this specific case, only a preparation fee of 16 euros per application, a total of 1.320 Euro. Because of the materials used for the production of the contract committed the funds for the payment of VAT regardless of whether it actually is a sales tax obligation.

For the health insurance of the dispute was, therefore, of particular interest, because they have had no hand to bring a tax dispute, even before the financial courts. To this end, the BSG ruled that hospitals only risk to companies, free steps for tax reduction. But they are not as “committed, in the interest of the health insurance tax disputes to führen“. mwo