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BSG: Clinics could and should have avoided tax damage
In the million dollar dispute over the sales tax on cancer drugs, the statutory health insurance companies can claim reimbursement from the hospitals to a large extent. This was decided by the First Senate of the Federal Social Court (BSG) on April 9, 2019 in Kassel (Az .: B 1 KR 5/19 R). According to this, clinics do not have to carry out any risky processes in order to relieve the health insurance companies.
The dispute is about sales tax on cytostatics for outpatient chemotherapy. These are manufactured individually for each patient in the hospital pharmacies. According to box office estimates, a good 400 clinics are facing claims totaling over 100 million euros. The extent to which the BSG judgment can now be taken is open.
In the past, health insurance companies and clinics agreed that cytostatics were subject to sales tax for outpatient chemotherapy. In the drug price agreements (AMPV) between health insurers and clinics, it was therefore generally agreed that the health insurers also pay the "applicable sales tax" at the net prices.
In 2014, however, the Federal Finance Court (BFH) in Munich ruled that even with outpatient chemotherapy, the medicinal preparations individually made in the hospital pharmacy are still included in hospital treatment and are therefore exempt from VAT. The health insurers therefore reclaimed the sales tax from the clinics in hundreds of procedures.
In 2016, the Federal Ministry of Finance accepted the BFH case law. However, it left the hospitals with the choice of retrospectively correcting their VAT returns. For tax purposes, this is possible up to four full calendar years after submitting the VAT return.
In response to a complaint from the Techniker Krankenkasse against the Städtische Klinikum Karlsruhe, the BSG decided that the hospitals were obliged, as far as possible, to prevent the viability of their sales tax assessments. This results from a supplementary interpretation of the AMPV: Had cash registers and clinics known about the later BFH ruling at the time the contract was concluded, they would have agreed that the cash registers are entitled to repayment of the wrongly paid sales tax, insofar as the clinic “has its right to reimbursement against the tax office can enforce without process risk ”.
In a similar approach, the Federal Court of Justice (BGH) in Karlsruhe had already decided on private health insurance companies. However, the BGH referred several cases back to the respective lower court for “additional contract interpretation”. The reason for this difference is probably that the situation is more clear because of the "profitability requirement" in statutory health insurance.
The BSG further ruled that the statutory health insurance funds can claim reimbursement even if sales tax assessments have already become final. The clinics would then be obliged to pay compensation. After all, they would have been “at least after the BFH ruling of September 24, 2014 obliged to apply for the amendment in anticipation of possible reactions by the tax administration within the ongoing deadline. This would have been reasonable given the fact that the procedure was free of charge. ”
The extent to which this BSG jurisprudence now takes effect depends on the individual AMPV. In the specific case, the dispute was only about a manufacturing flat rate of 16 euros per application, a total of 1,320 euros. Because with regard to the raw materials used, the contract obliged the health insurers to pay sales tax regardless of whether there is actually a sales tax obligation.
The dispute was also of particular interest to the health insurance companies because they have no means of bringing tax disputes to the financial courts themselves. The BSG ruled that hospitals only have to take risk-free steps to reduce taxes. However, they were "not obliged to conduct tax disputes in the interests of health insurance companies". mwo