BFH bars pooling of rooftop PV across sites for power-tax relief

Operators of rooftop photovoltaic installations spread over several kilometres cannot pool sub-2 MW units to claim electricity-tax relief for large plants.Bundesfinanzhof In judgments of 28 July 2026 (VII R 29/23 for 2020 and 2021, and the inhaltsgleich VII R 30/23 for 2021) the VII Senate of the Bundesfinanzhof rejected relief for a retail chainBundesfinanzhof whose store-rooftop PV units of 119.6 to 203.13 kW consumed power on site and fed surplus into the general grid via direct marketing by W AG, which could centrally control the units.

For the large-plant exemption the test is site-specific.Bundesfinanzhof Relief under § 9 Abs. 1 Nr. 1 StromStG, claimed through § 12c Abs. 1 StromStV, needs generation in plants of more than 2 MW from renewables with self-consumption by the operator at the place of generationBundesfinanzhof. Each unit here was below 2 MW. The aggregation rule for units at different sites in § 12b Abs. 2 Satz 1 Stromsteuer-Durchführungsverordnung in the version applicable until 31 December 2025 applies only to the small-plant exemption in § 9 Abs. 1 Nr. 3 StromStG, not to Nr. 1, with no analogy to closeBundesfinanzhof. The place of generation means the building, plot or spatially connected area of the unit, not properties kilometres apart, however reliable the per-store metering.Bundesfinanzhof

The small-plant route fails for the opposite reason. Strom under § 9 Abs. 1 Nr. 3 Buchst. a StromStG covers plants of up to 2 MW used by the operator as Eigenerzeuger im räumlichen ZusammenhangBundesfinanzhof. Under old § 12b Abs. 2 Satz 1 StromStV, units at different sites count as one plant where centrally controlled for generation — in particular where fernsteuerbar under § 36 EEG with at least partial feed-in — so summed output decides.Bundesfinanzhof The chain's units were fernsteuerbar through W AG with surplus fed in, forming one plant above 2 MWBundesfinanzhof. The carve-out in old § 12b Abs. 3 Satz 2 StromStV did not applyBundesfinanzhof: it needs third-party direct marketing, total output of no more than 2 MW and consumption inside the KundenanlageBundesfinanzhof, while the portfolio exceeded 2 MW and served only one specific consumer per site outside any Kundenanlage under § 1a Abs. 9 StromStV.

Neither equality nor Union law compels seamless relief.Bundesfinanzhof Article 15(1)(b) first indent of the Energy Tax Directive (Richtlinie 2003/96/EG) is facultative, leaving the legislature free to subsidise only chosen renewable casesBundesfinanzhof; the distinct aims — self-consumption at the place of generation in Nr. 1 versus small producers in Nr. 3 — objectively justify different plant conceptsBundesfinanzhof. The same wide discretion under Article 3(1) Grundgesetz defeats the constitutional claim, and exemption provisions are narrowly construed.

The Finanzgericht Düsseldorf judgments of 4 October 2023 (4 K 1072/23 VSt and 4 K 1079/23 VSt), which had granted Nr. 1 relief by functionally aggregating the sitesBundesfinanzhof, were set asideBundesfinanzhof, the claims dismissed and costs imposed on the claimant. The unified plant definition in § 12b Abs. 1 StromStV in force since 1 January 2026 does not apply retroactivelyBundesfinanzhof.

Operators with open or contested pre-2026 claims for multi-site directly marketed PVBundesfinanzhof should expect the Hauptzollamt to assess each site alone for Nr. 1Bundesfinanzhof and to aggregate remotely controlled portfolios out of Nr. 3Bundesfinanzhof, and should review Fernsteuerbarkeit and feed-in structures before filing § 12c applications.

The result follows from § 9 Abs. 1 Nr. 1 and Nr. 3 Buchst. a StromStG with §§ 12b Abs. 2, Abs. 3 and 12c Abs. 1 StromStV in the versions applicable until 31 December 2025, read against Art. 15 Abs. 1 Buchst. b EnergieStRL and Art. 3 Abs. 1 GG.