Aesthetic operations and aesthetic treatments are only exempt from VAT as medical treatment if they are used to treat or cure persons who require an aesthetic procedure due to an illness, injury or congenital physical defect.
In order to protect the relationship of trust between doctor and patient, it is necessary when reviewing the VAT exemption of medical treatment services to reduce the standard of proof required for the formation of a judicial conviction to the „greatest possible probability“. At the same time, the person concerned must fulfill their duty to cooperate to a greater extent. This requires detailed information (in anonymized form) on the therapeutic or prophylactic objective pursued with the respective treatment case.
The Federal Fiscal Court has now consolidated its legal opinion on the VAT treatment of aesthetic treatment services and specified the burden of proof on the party concerned. In particular, the BFH clarifies that, unless there is a factual presumption of medically indicated treatment, the existence of treatment must be documented and proven for each individual patient by means of determinations to be made by medical professionals. The factual requirements must be proven by a qualified medical certificate, which should contain information on this in particular,
- the actual basis on which the professional assessment was made,
- which method of fact-finding was used,
- what the professional medical assessment of the clinical picture (diagnosis) is,
- the severity of the disease and the (disfiguring or psychological) consequences.
The determination of a disfiguring effect or a mental illness typically does not have to be made by a surgeon, but by a specialist doctor responsible for this. Interventions of an aesthetic nature are also exempt from VAT if the medical measure serves to eliminate the negative consequences of a previous medically indicated treatment in a factual context, e.g. a tooth whitening treatment that only results in an optical change to the tooth following root canal treatment that resulted in a darkening of the tooth.