Amendments to the Energy and Electricity Tax Ordinance (Energie- und Stromsteuerdurchführungsverordnung) as of 01.01.2018

The second law amending the Energy and Electricity Tax Act of 27 August 2017 was promulgated in the Federal Law Gazette on 4 September 2017. Against this backdrop, the Federal Ministry of Finance (BMF) issued the ordinance amending the Energy Tax and Electricity Tax Implementing Ordinance on 10 October 2017 with publication in the Federal Law Gazette of 2 January 2018. The changes came into force retroactively as of January 1,2018. The amendments to the ordinance are intended to implement the new legal regulations and thus ensure their uniform application.

Since 1 January 2017, the self-declaration on state aid on the official form 1139 must be submitted to the competent main customs offices with all applications for relief relevant to the aid. The amendment of the Regulation now provides a national legal basis for this additional obligation to declare. Contrary to previous practice, persons entitled to relief will in future only have to submit the form with the first relief section - as long as there are no changes to the circumstances described in the form. In addition, violations of the reporting obligations of the Energy Tax and Electricity Tax Transparency Ordinance (EnSTransV) are to be punishable by administrative offensives as of January 1,2017.

For the tax relief in accordance with Section 9a StromStG and Section 51 EnergieStG, the applicants are obliged to measure the quantities of electricity and natural gas that can be discharged with meters. Up to now, this requirement has only been regulated in service regulations. Other methods of investigation are still permitted on request.

In order to limit the tax privileges granted to enterprises in the manufacturing sector (Unternehmen des Produzierenden Gewerbes (UdPG) to companies that actually produce their goods, companies that commission other enterprises to manufacture and process their goods should not in future be classified as if they were processing the goods themselves. UdPGs which are currently entitled to discharge should examine whether the amendment of the ordinance will have an impact on their main focus of economic activities.

A declared or fixed tax or tax relief shall not be fixed, amended or corrected by the competent main customs offices until an amendment of at least EUR 25 has been made. At present, the implementing regulations do not provide for small amount arrangements.

In Section 1a StromStV, additional exceptions to the supply status under electricity tax law have been included. In particular, it is now possible to purchase taxed electricity as final consumer and to supply it exclusively to third parties within the meaning of Section 3 No. 24a and No. 24b of the German Energy Industry Act (EnWG) within the meaning of Section 3 No. 24a and No. 24b. As a rule, customer systems are company networks connected to the public electricity grid (see also article 1.5 in this issue of the information letter). An official form has also been introduced for the hitherto informal application of the utility permit.

Pursuant to Section 1c StromStV, battery electric vehicles as well as externally rechargeable hybrid electric vehicles (plug-in hybrids) fall under the definition of the term "electromobility" according to electricity tax law. A battery-electric vehicle is a motor vehicle as defined in Section 1 Straßenverkehrsgesetz (Road Traffic Act) with an electric drive, the electric energy storage of which can be recharged from outside the vehicle. An externally rechargeable hybrid electric vehicle is a vehicle with several drives, at least one of which is electric and whose electrical energy storage device can also be charged from outside the vehicle.

The use of electrically powered vehicles which are not approved for road traffic and which are used exclusively on a company site, as well as electrically powered bicycles which are used exclusively on a company site, are expressly not electric mobility within the meaning of the law. As a result, for example, the amounts of electricity that are taken from forklifts and hand trucks used solely for in-house operations do not have to be deducted as part of the tax relief in accordance with Sections 9b, 10 StromStG.