BFH: ordered destruction of spirits is taxable misuse

Destroying spirits on the instructions of a use-permit holder (Verwender) is not destruction by nature of the goods or through unforeseeable events or force majeure within § 153 Abs. 3 Satz 1 in conjunction with § 143 Abs. 3 Satz 1 BranntwMonGBundesfinanzhof, and the spirits tax arisesBundesfinanzhof. So holds the VII. Senat's judgment of 19 May 2026 (VII R 34/23): the Finanzgericht Hamburg judgment of 25 October 2022 (4 K 26/20) is set aside where the action had succeededBundesfinanzhof, and the action is dismissed there tooBundesfinanzhof, with all costs on the claimant.

The claimant, operating a manufacturing plant for medical disinfectants, held permits for tax-free use of denatured spirits (one litre MEK per 100 litres of pure alcohol) for pharmaceutical and non-food, non-medicinal goods, plus tax-free use of undenatured spirits for pharmaceuticals. A 2016 field audit found two quantities on which tax had arisen: ethanol pumped from an earth tank before maintenance and scrapped in SAP on 4 May 2016 (collected 12 May 2016 as aqueous washing fluids and mother liquors), and small drain quantities run off from delivery tankers' outlets into measuring vessels for quality sampling (0.05% to 0.2% of the load). The assessment of 27 May 2019 was partly lifted on objection on 10 February 2020; the lower court largely allowed the action, holding tax due only on a few litres of pure undenatured alcohol under § 153 Abs. 3 Satz 1, and the denatured pump and drain quantities exempt under the administration's instruction V 23 10-8-1 on ending tax-free use of denatured alcohol, which let residual quantities be disposed of without official involvement.

Goods taken into the plant have left duty suspensionBundesfinanzhof; tax arises on use against the permit's purpose, absent § 143 Abs. 3Bundesfinanzhof. Ordered destruction is no permitted purposeBundesfinanzhof: the permit allowed manufacture, not destructionBundesfinanzhof, which is no use under § 152 Abs. 1Bundesfinanzhof. Nor does § 143 Abs. 3 applyBundesfinanzhof: the loss flows neither from the goods' nature — plant-construction and handling reasons — nor from unforeseeable events or force majeureBundesfinanzhof, since destruction was expressly ordered, not caused from outside the claimant's sphereBundesfinanzhof (KRI, C-323/22; Girelli Alcool, C-509/22). Destruction and loss are chargeable in principle under Article 7 VStSystRLBundesfinanzhof, with Article 7(4) a narrow, exhaustive exceptionBundesfinanzhof. The drain quantities are analysed identically.

Destruction needs a week's prior notice with business records (§ 13 Abs. 2 Satz 1 BrStV, via § 48 Abs. 1 Satz 4 BrStV), even if unsupervisedBundesfinanzhofBundesfinanzhof. None was givenBundesfinanzhof. Instruction V 23 10-8-1 waives only supervision (§ 13 Abs. 2 Satz 3), not notificationBundesfinanzhof — a waiver the administration never granted on its own authoritative readingBundesfinanzhof, and one an instruction could not lawfully grantBundesfinanzhof. Notice is no formality: Article 7(4) VStSystRL conditions non-chargeability on official permissionBundesfinanzhof. Article 27(1)(a) of Directive 92/83/EEC does not help eitherBundesfinanzhof, since the alcohol was only incompletely denatured with MEKBundesfinanzhof, not fully denatured per Regulation 3199/93Bundesfinanzhof. The Verwender is the debtor (§ 153 Abs. 3 Satz 4)Bundesfinanzhof; the 2016 assessment was timelyBundesfinanzhof; no Luxembourg reference is needed.

Legal basis: §§ 143 Abs. 3 Satz 1, 152 Abs. 1 Nr. 1 and 3, 152 Abs. 2 Nr. 4, 153 Abs. 1 Satz 1 and Abs. 3 Satz 1 and 4, § 130 Abs. 1, Abs. 2 Nr. 1 and Abs. 5, § 139 Abs. 1 Nr. 2 and Abs. 3 Nr. 2 BranntwMonG; §§ 13 Abs. 2 Satz 1 and 3, 28 Abs. 7 Satz 2 and 48 Abs. 1 Satz 4 BrStV; Art. 7 Abs. 1, 2(b) and 4 and Art. 30 VStSystRL; Art. 27 Abs. 1(a) and (b) of Directive 92/83/EEC.