Emergency medical on-call services
Legal basis
The case at issue concerns the application of Section 4 No. 14 letter a of the German Value Added Tax Act (UStG). According to this provision, "medical treatment in the field of human medicine" within the scope of a doctor's activity is exempt from VAT.
The case
In the case in question, a self-employed general practitioner worked as an honorary emergency physician on the side. For this activity, the physician had to be on call during duty hours. On standby days, he was only allowed to be at a maximum distance of one kilometer from the rescue station. During the on-call period, the physician was either in his or her practice or in an apartment near the rescue station that was reserved for honorary emergency physicians. The doctor received an hourly fee of € 20.00 for the time he was on call. No separate remuneration was paid for individual assignments. On the occasion of a tax audit, the tax office levied VAT on the doctor's emergency fees. The reason given by the tax auditor was that "activities that are not part of a concrete, individual service concept serving to diagnose, treat, prevent and cure diseases and health disorders" were not exempt from VAT under Section 4 No. 14 a UStG.
Ruling of the Lower Saxony Fiscal Court
The Lower Saxony Fiscal Court (FG) took a different view (ruling dated January 23, 2020, 11 K 186/19). The court classified medical on-call services as VAT-exempt medical treatment services and justified this by stating that such on-call services were "indispensable for emergency medical treatments" and thus would be "part of the typical professional profile of a physician". On-call services are thus not only a prerequisite for any necessary VAT-exempt emergency treatment, but also serve to treat illnesses or health disorders and are therefore VAT-exempt.
Revision
The tax authorities have filed an appeal against the ruling of the Tax Court with the Federal Fiscal Court (Bundesfinanzhof, BFH). The case is currently pending under file number V R 8/20.
Status: August 30, 2021
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