BFH: free hotel car parks open to all are untaxed; fitness access at 19%

Hotel car parks that overnight guests, other hotel visitors and the general public may all use free of charge involve no supply for considerationBundesfinanzhof: the guests who park obtain no consumable advantage over members of the public who park without paying for a roomBundesfinanzhof. The V. Senat therefore holds that the parking facilities in the 2011 dispute year fall outside VAT altogetherBundesfinanzhof, and it departs from the XI. Senat judgment of 1 March 2016 in case XI R 11/14Bundesfinanzhof, which had treated the grant of parking to hotel guests as standard-rated even where no separate charge was made. The lower court's finding controls the outcome: the car parks of both hotels stood open to everyone without a separately calculated chargeBundesfinanzhof, so use of a space did not depend on paying for short-term accommodationBundesfinanzhof.

Access to fitness and wellness facilities granted to hotel guests stands on the opposite side of the line. The court treats the grant of access as a taxable supply for considerationBundesfinanzhof, but one taxed at the standard rate rather than the 7% reduced rate for short-term accommodationBundesfinanzhof. The Finanzamt had estimated the taxable amount from the calculated cost share of the facilities plus an appropriate profit mark-up, spread over the number of overnight guests to reflect actual use rather than mere availability to every guest. That estimation method raises no objection, including under the neutrality principle given competition with other providers of such servicesBundesfinanzhof. Whether mere readiness to let every overnight guest use the facilities, even if never taken up, would itself already amount to a supply is expressly left openBundesfinanzhof.

The standard rate of 19% under § 12 Abs. 1 UStG appliesBundesfinanzhof because fitness and wellness access does not fall under § 12 Abs. 2 Nr. 11 UStGBundesfinanzhof: Satz 1 grants 7% for the letting of Wohn- und Schlafräume kept ready for short-term accommodationBundesfinanzhof while Satz 2 excludes supplies not directly serving the lettingGesetze IM Internet. The Court of Justice, in its judgment J-GmbH u.a. of 5 March 2026 in cases C-409/24 to C-411/24 given on the XI. Senat's reference of 10 January 2024, held that Article 98(1) and (2) with Annex III No. 12 of the VAT Directive does not preclude excluding supplies such as parking, fitness and wellness facilities, hotel WLAN access and breakfast from the reduced rateBundesfinanzhof. WLAN access is not yet decidableBundesfinanzhof. The lower court described an "open" network held ready "unentgeltlich" for guests, and the court cannot tell whether the access was, like the car parks, usable by anyone or only by hotel guests, and hence whether it conferred a consumable advantageBundesfinanzhof. That question goes back to the Niedersächsisches Finanzgericht for further findings, together with the whole caseBundesfinanzhof: the revision succeedsBundesfinanzhof, the judgment of 19 August 2021 (5 K 174/19) is set asideBundesfinanzhof, and the matter is remanded. Non-taxability for want of consideration triggers neither a deemed-supply charge under § 3 Abs. 9a Nr. 1 or Nr. 2 UStG, which requires a supply for non-business purposesBundesfinanzhof, nor any restriction of input-tax deduction under § 15 UStGBundesfinanzhof.

Legal basis: § 1 Abs. 1 Nr. 1, § 3 Abs. 9a Nr. 1 and Nr. 2, § 12 Abs. 2 Nr. 11 and § 15 UStG; Art. 2 Abs. 1 Buchst. c and Art. 98 Abs. 1 and 2 with Annex III No. 12 of the VAT Directive; ECJ J-GmbH u.a. of 5 March 2026, C-409/24 to C-411/24.