BFH: care billed via a third party keeps trade-tax exemption

Trade-tax exemption for outpatient care facilities under § 3 Nr. 20 Buchst. d GewStG covers receipts from nursing services the facility actually renders to sick or dependent persons even where billing to the statutory social insurance or social assistance carriers runs through a third partyBundesfinanzhof. The civil-law shape of the service and billing relationships does not bar the exemptionBundesfinanzhof. That is the first holding of the VII. Senat's decision of 28 July 2026Bundesfinanzhof (VII R 35/24, under § 126a FGO without oral hearing): the revision of the Finanzamt against the Finanzgericht Düsseldorf judgment of 13 March 2024 (7 K 2517/21 G) is dismissed as unfoundedBundesfinanzhof, with costs on the defendant (§ 135 Abs. 2 FGO).

The claimant GmbH, an SAPV-focused ambulatory nursing serviceBundesfinanzhof under its sole shareholder-manager, a state-examined nurse, earned all receipts from nursing persons in need of care. Direct commissions it billed to the health insurers itself; as a member of a Palliative Care Team organised in a cooperative (G. eG)Bundesfinanzhof, it invoiced its nursing to the cooperativeBundesfinanzhof, which billed the whole SAPV service to the patients' insurers in its own nameBundesfinanzhof. Receipts billed via the cooperative dominatedBundesfinanzhof (82% in 2015, 79.9% in 2016, 85.3% in 2017, 79.8% in 2018), with costs ultimately borne by statutory carriers in at least 40% of casesBundesfinanzhof. The 2020 audit treated the cooperative-billed services as rendered to the cooperative and hence taxableBundesfinanzhof; measurement-amount notices for 2015 to 2018 followed on 29 January 2021.

The exemption is activity-based, not personal. Here every receipt rested on nursing the GmbH's own staff actually rendered to dependent personsBundesfinanzhof, so all receipts flowed from the privileged facility itselfBundesfinanzhof. The civil-law relationship does not decide whether the remunerated activity is by its object outpatient nursingBundesfinanzhof: the norm requires only actual nursing of the sick and dependent, whether owed to the patient or to a third partyBundesfinanzhof, and contains no fiction deeming the cooperative the recipientBundesfinanzhof. Excluding team members would frustrate the § 132d SGB V aim of nationwide SAPV coverage through team services. The 2011 precedent (I R 43/10) is consistent, excluding only genuinely different commercial services; the GmbH supplied nothing but nursing, with no attribution of the cooperative's activities needed.

The second holding concerns the 40% testBundesfinanzhof: costs need only be economically borne, wholly or predominantly, by the statutory carriers in at least 40% of casesBundesfinanzhof — "Tragen" denotes the economic burden, not the payment path, and the taxpayer carries the burden of proof. A directness requirement would fit neither the purpose, since indirect bearing relieves the insured community just the same, nor the § 13 Abs. 2 Satz 1 SGB V system, where patients may opt for cost reimbursement: the provider's exemption would then turn on the patient's chance choice. Conversely, up to 60% of cases without carrier-borne costs stay exemptBundesfinanzhof.

Legal basis: § 3 Nr. 20 Buchst. d GewStG; § 71 Abs. 1 SGB XI; §§ 13 Abs. 2 Satz 1, 37b Abs. 3, 92 Abs. 1 Satz 2 Nr. 14 and 132d Abs. 1 SGB V; §§ 118 Abs. 1 Satz 1, 126 Abs. 2, 126a and 135 Abs. 2 FGO.