The ECON Committee has voted on its non-binding opinion on the Commission proposal for better VAT administrative cooperation, including provisions concerning the certified taxable person (CTP). The file is led by the MEP Roberts Zile (ECR/LAT)…
European Parliament
ECON votes on VAT Administrative Cooperation proposal – 18/19 June 2018
The ECON Committee has voted on its non-binding opinion on the Commission proposal for better VAT administrative cooperation, including provisions concerning the certified taxable person (CTP). The file is led by the MEP Roberts Zile (ECR/LAT).
The draft report was passed in the ECON Committee by 51 votes in favour, 2 against and 3 abstentions. As a next step, the report will be adopted by the European Parliament Plenary, probably on 3 July. The European Parliament’s opinion on the Commission proposal is needed in order for it to become EU law, but the actual decision is made by unanimity between all 28 EU member states – as always on tax files.
Debate before the vote
The day before the vote, the ECON MEPs held what was a very consensual discussion on the draft opinion. Most ECON MEPs across the political Groups had rallied behind key positions in the report concerning the CTP as well as requests for administrative inquiries.
At the beginning of the debate, Ludek Nidermayer (EPP/CZE) explained on behalf of Mr. Zile who was absent that the rapporteur had re-introduced the concept of CTP into his draft opinion. Readers may recall that Mr. Zile initially proposed to remove the CTP concept from the draft opinion altogether. Moreover, the rapporteur now proposes that only one member state, and not two or more, is enough to request an administrative inquiry and joint audits.
Olle Ludvigsson (S&D/SWE), for his part, emphasised his support for the CTP concept, and insisted that it should be possible for tax authorities to carry out investigations in other member states. Molly Scott Cato (Greens-EFA/UK) also expressed support for the CTP, but highlighted that there must be clear and robust criteria for it. On joint audits, Ms. Cato was aligned with the other political groups as described above.
TAX3 Committee hearings on tax fraud, including VAT – 28 June 2018
TAX3 Committee has held two hearings on tax fraud. The first one focused on the use of tax and VAT fraud for terrorist financing, whilst the second focused on VAT fraud specifically.
These hearings demonstrate yet again the wide scope of TAX’3 mandate, which ranges from tax avoidance to evasion, VAT fraud, money laundering, golden visas, ‘tax havens’ and digital taxation. This is in stark contrast to the previous two TAXE Committees, whose main emphasis was still corporate tax avoidance. PANA Committee already started to broaden the mandate from that.
The role of tax fraud in terrorist financing
The first one of the two hearings was held jointly with the European Parliament TERR Committee – the special Committee on terrorism.
The hearing focused on the use of VAT and carousel fraud to finance terrorism, bolstered by a panel of experts. The debate highlighted the need for more cooperation and exchanges of information between authorities, and emphasised the need for robustly implementing adopted legislation, including the fourth Anti-Money Laundering Directive (AMLD IV).
Elena Hach from Romania’s National Office for Prevention and Control of Money Laundering (FIAU) emphasised that cooperation between law enforcement authorities and private sector experts is needed to effectively tackle VAT fraud. Europol’s Pedro Seixas Felicio, for his part, singled VAT fraud out as the largest form of fraud ongoing in Europe. He also emphasised the need to reform EU’s current VAT system, which was supposed to be temporary.
Ana Gomes (S&D/POR) criticised the slow pace of VAT reform by member states, who are blocking or slowly progressing on a number of key VAT files in the Council. She also hinted at close links between ‘certain’ member state governments and criminal networks. Finally, she enquired about the use of cryptocurrencies for terrorist financing.
In response, both Marius-Christian Frunza from Schwarzthal Kapital as well as Mr. Seixas Felicio acknowledged the potential of cryptocurrencies and, increasingly, crowdfunding platforms for terrorist financing. However, they also emphasised that for the time being their scale for such purposes is relatively small. Having said that, both called for keeping a close eye on developments. Mr. Seixas Felicio added that any entity that behaves like a bank should be treated as a bank. Ms. Hach, for her part, insisted that cryptocurrency platforms should be subject to closer scrutiny by authorities.
Particular challenges of VAT fraud
The second hearing brought together another panel of experts to discuss ways to reduce VAT fraud. Member states’ cooperation in the fight against fraud notably via Eurofisc, as well as how innovation can help reduce VAT fraud or in turn be used for fraud, were also discussed.
Neven Mates from the European Court of Auditors lamented the lack of a systematic effort to tackle VAT fraud at the EU-level. This would require a bottom-up assessment of the grey economy per country. Mr. Mate encouraged the European Commission to organise the collection of standardised data on this, which is currently only done by Belgium and the UK.
Richard Murphy from Tax Justice Network, in turn, criticised member states for not tackling even domestic VAT fraud meticulously enough. He thus questioned how effective EU-level action would be, when member states themselves are not willing to take the fight against VAT fraud seriously. He also insisted that national tax authorities require more resources than they currently have at their disposal. Finally, robust turnover reporting is the key, Mr. Murphy emphasised.
Maite Fabregas Fernandez from the European Commission spoke about the definitive regime, and presented the main Commission proposals for reforming the EU VAT system. She insisted that member states agree in principle with the definitive regime, but that they require further details before making up their final positions. A key issue remains the lack of trust between member states. In order to bolster this trust, the Commission is encouraging joint audits, and organising meetings between the heads of national tax administrations to discuss issues of concern.
Jeppe Kofod (S&D/DEN) asked the panellist about the added value of the Certified Taxable Person (CTP) concept.
Mr. Murphy was sceptical, since he feels that it will create barriers for smaller businesses.
Arndt Khon (S&D/GER) raised the point of external audits in the UK. Richard Murphy replied that there are currently no external audits in the UK at the moment due to a lack of personnel in the tax administration. He remarked that now that this “threat” has disappeared, biggest companies are more encouraged to avoid paying taxes.
ECON Committee hearing on VAT files – 2 July 2018
The ECON Committee has held further discussions on the Committee’s work on three key VAT proposals: the special scheme for SMEs, VAT rates reform and the definitive regime. The files are led by the MEPs Tom Vandenkendelaere (EPP/BEL), Tibor Szanyi (S&D/HUN) and Jeppe Kofod (S&D/DEN), respectively.
During their respective hearings, each of the rapporteurs explained the state of play on ECON’s internal negotiations on the file, and elaborated on the main points of contention. Committee votes on each of the files is scheduled for the next few days, followed by final plenary votes during autumn.
As a reminder, on these three files the European Parliament may only submit its non-binding opinion. Member states will make the actual decisions by unanimity – the usual tragedy (or blessing) of tax work at the EU-level, depending on one’s point view.
Special scheme for SMEs
A total of 61 amendments (AMs) were tabled by ECON MEPs to Mr. Vandenekdelaere’s report.
Overall, it appears that most political Groups are on the same page concerning the draft report as well as the AMs to be introduced. However, Alfred Sant (S&D/MAL) opposed the new proposed lowering of the VAT exemption thresholds further. He also objects a proposed AM that would increase the SME definition to companies with EUR 4 million turnover (as opposed to the initial EUR 2 million) – a level he considers to be too high.
Another exception is the Eurosceptic ECR Group. Stwanislaw Ozog (ECR/POL) stated that member states should have the freedom to maintain shorter declaration periods if they so wish, and lamented the impact that common EU rules for a SME special scheme could have on member states’ budget. Therefore, he concluded, ECR cannot support the proposal. Having said that, the proposal is still likely to pass the ECON vote.
In terms of next steps, ECON will vote on the file on 11 July. A Plenary vote is currently scheduled for 11 September.
VAT rates reform
For the VAT rates draft report, in turn, a total of 66 AMs have been tabled.
During the debate, Mr. Szanyi emphasised that there is cross-Group agreement for his draft report as well as the direction of some of the AMs. The MEPs stand together in supporting the destination principle, as well as the introduction of one additional reduced rate. Mr. Szanyi also called for an up-to-date online portal that would provide relevant data for companies on the VAT rates of different member states.
Some disagreements still exist, notably between the Greens and EPP, on the question of reduced and super reduced rates, for example.
In terms of next steps, an ECON vote is scheduled for 3 September. Plenary, for its part, is currently scheduled to vote on 2 October.
Definitive regime
Finally, for the definitive regime draft report 95 AMs were tabled.
Mr. Kofod emphasised that he sees a solid compromise. He insists on three points, however, that there should be no weakening of the text or loosening of the scope. Burkhard Balz (EPP/GER) wondered whether the Certified Taxable Person (CTP) concept should not be introduced by the definitive regime, rather than as a quick fix. If it is to be introduced now the concept and the criteria for attaining the CTP status should be further clarified.
The ECON vote is expected for 3 September, followed by a Plenary vote probably on 2 October.
Plenary votes on VAT Administrative Cooperation – 3 July 2018
The European Parliament Plenary has voted on Robert Zile’s (ECR/LAT) draft report on VAT administrative cooperation. The vote passed by 568 votes in favour, 56 against and 56 abstentions.
The Parliament’s now approved report attempts to improve the balance between data privacy on the one hand, and better information exchange between relevant authorities to tackle VAT fraud. The report also proposes for information to be exchanged between Eurofisc and Europol.
Member states already reached a political consensus on the Commission proposal at the June ECOFIN. The adoption of Mr. Zile’s report in Plenary means that the proposal can become EU law. However, as always VAT and tax files, the European Parliament’s opinion does not need to be take into account.
Plenary debate and vote on FATCA resolution – 4 July 2018
The European Parliament Plenary has approved a Motion for Resolution on the US FATCA and so-called ‘accidental Americans’. The Motion was adopted by 470 votes in favour, 43 against and 26 abstentions. It was drafted by the MEP Cecilia Wikström on behalf of the petitions Committee (PETI).
The Motion focused, in particular, on the practical difficulties and burdens faced by EU-US double citizens. By virtue of their US citizenship, these individuals are subject to certain additional requirements and unequal treatment due to FATCA’s provisions.
The vote on the Motion was preceded by a hearing with the European Commission and the Austrian Presidency. The hearing focused, in particular, on FATCA’s impact on EU citizens. According to the MEPs, as many as 100.000 EU citizens who are also US citizens either unknowingly or without ties to the country, are denied access to basic payment services by EU financial institutions due to the bureaucratic and costly hurdles of either receiving a US social security number or for renouncing the US citizenship.
The MEPs insist that accidental Americans should have alleviated and free means to get rid of their US citizenship. Moreover, they call on the Payment Accounts Directive (PAD) to be properly transposed. PAD guarantees all EU citizens the right to access a payment account regardless of their nationality. Finally, the MEPs argue that FATCA is a violation of not only certain EU Directives but also fundamental rights, and called on the EU to pursue a common, united response to FATCA.
In response, both the Council and Commission insisted that it is impossible to provide a concerted EU response to FATCA given that EU member states have preferred to deal with FATCA bilaterally with the US.
European Commission
Commission proposes expansion of sectoral reverse charge mechanism – 25 May 2018
The European Commission has proposed to extend the reverse charge mechanism on a defined list of goods and services. Moreover, the Commission proposes to extend the Quick Reaction Mechanism in Article 199b (1) of the VAT Directive until 30 June 2022.
The Commission’s aim is to enable Member states to quickly address missing trader fraud by allowing them to apply the reverse charge mechanism for listed supplies, and offering a faster procedure for the introduction of the reverse charge mechanism in case of sudden and large scale fraud.
It is possible that the proposal is a response to notably Czech Republic’s demands to use a generalised reverse charge mechanism applying across all sectors, rather than the sectoral approach proposed by the Commission. However, by expanding the scope and time efficiency of the sectoral reverse charge framework, the Commission may be hoping to appease Czech demands.
Whether or not this is enough for the Czechs to lift their veto on the e-publications proposal remains to be seen. Based on the finance ministers’ discussions at the ECOFIN meeting, however, there is not much room for optimism.
Commission publishes June infringements package – 7 June 2018
The European Commission has published the latest monthly infringements package which, again, includes a number of tax cases.
Firstly, the Commission has requested Austria to amend its VAT scheme for travel agents. Austria has excluded from its special VAT scheme sales of travel services to other taxable persons who use them for business purposes. The Commission argues that the Austrian VAT scheme for travel agents distorts competition in favour of domestic operators.
Second, the Commission has sent reasoned opinions to five member states – Cyprus, Greece, Ireland, Luxembourg and Romania – for their failure to communicate the transposition of the Directive on Administrative Cooperation granting tax authorities access to anti-money laundering information (DAC V). Moreover, the Commission closed the infringement case against Bulgaria, which has now transposed DAC V.
Additionally, the Commission sent several letters of formal notice. The first one went to the Czech Republic for its failure to correctly transpose new transparency rules for the exchange of information on tax. A second letter was sent to Latvia, which the Commission is requesting to align its rules regarding the VAT reverse charge mechanism, which it sees now as applying the mechanism too widely.
Link: http://europa.eu/rapid/press-release_MEMO-18-3986_en.htm
Commission proposes to improve cooperation between tax and customs authorities – 8 June 2018
The European Commission has proposed to render tax and customs cooperation between member states better and more efficient by launching two new Regulations for Fiscalis and Customs Programmes.
The proposals, including new funding, are made in the context of the EU budget 2021-2027. These two new programmes will take over from the current Customs and Fiscalis programmes, which are due to expire on 31 December 2020. The new budgets for both amount to EUR 950 million for Customs and EUR 270 million for Fiscalis or 0.07% and 0.02% respectively of the total forthcoming EU budget for the indicated period.
According to the Commission, the new Customs Programme will help put in place a modern Customs Union, while the Fiscalis Programme will support cooperation between member states’ tax administrations and better contribute to the fight against tax fraud, tax evasion and tax avoidance.
Commission launches public consultation on the evaluation of invoicing rules – 13 June 2018
The European Commission has launched a public consultation to the evaluate EU s invoicing rules. The deadline for responding is 20 September.
The scope of the consultation is to collect data and evidence needed to evaluate the invoicing rules introduced by the second Invoicing Directive (Directive 2010/45/EU). The Commission seeks, in particular, stakeholder views on how the Second Invoicing Directive met its objectives and to what extent the invoicing rules are still aligned with stakeholders’ needs. The aim of the consultation is also to enquire stakeholders’ views on possible ways of reform.
In particular, the data gathered through the consultation should allow identification and quantification of the regulatory costs, benefits, savings and burden reduction and simplification potential for businesses generated by the invoicing rules. Special focus will be on e-invoicing. Data gathered through the consultation should allow to measure and better understand the uptake of electronic invoicing in the EU.
Commission updates VAT guidelines – 6 July 2018
The European Commission has published updated VAT guidelines. The new guidelines include input from the December 2017 meetings of the VAT Committee.
Council
Digital tax: Nordics turning cold, Malta questions legitimacy, Italy consults – 1/4/7 June 2018
The politicisation of the European Commission’s digital tax proposals contributes to gather momentum, as a number of EU member states position and re-position themselves in the debate.
Most notably, Sweden, Finland and Denmark have published a joint statement on the Commission’s proposal. In the statement, the Nordic finance ministers question the rationale in the Commission’s proposal, call for an international agreement first and foremost, and emphasise the importance of a favourable climate for innovative businesses.
In parallel, the Maltese Parliament has also issued a position statement on the Commission proposals. In particular, Malta argues that the proposals are in breach of the principle of subsidiarity.
For its part, Italy has reportedly launched a stakeholder consultation on the Commission proposals.
Consultation focuses on whether the country should support the Commission proposals and, in particular, the digital services tax (‘short-term measure’). The consultation runs until 22 June.
This appears to mark a visible switch from Italy’s previous, evidently enthusiastic approach towards EU measures targeting the digital economy. The country seems to be adopting a more cautious stance. Either way, with the new government we may yet see even more fundamental changes in Italy’s position to one way or the other.
And finally, Germany’s position remains blurry at best. It has changed from an initial enthusiasm to subsequent scepticism – fearing US retaliation against its car industry – to something even more ambiguous.
In summary, the battle lines are still forming, three months after the Commission launched its proposals.
Link: https://euobserver.com/opinion/141966
Austrian Presidency publishes its priorities for Q2 2018, tax high on the agenda – 6 June 2018
On VAT, the Austrian Presidency plans to achieve progress on numerous Commission proposals. The aim is to strengthen the Single Market, efficiently fight fraud and ensure cooperation between tax administrations. No specific mentioning is made on the definitive regime.
Netherlands to Champion EU VAT Law Change For Cost-Sharing Groups – 14 June 2018
The Dutch Ministry of Finance has announced that it seeks to resolve at EU level the issue around VAT rules concerning cost-sharing groups, following the Court of Justice of the EU’s rulings in DNB Banka (Case C-326/15) and Aviva Towarzystwo (Case C 605/15).
Article 132(1)(f) of the EU VAT Directive provides an additional exemption for certain activities that are in the public interest. The exemption allows persons who carry on these activities to join together to form a cost-sharing group (CSG) so that they can acquire services and recharge their members for their use of the services at cost without incurring any additional sticking VAT.
However, the rulings preclude insurance or financial services from benefiting from the exemption, arguing that these services cannot be said to be in the public interest. By implication, the cost-sharing exemption may no longer apply to banks, insurance businesses, financial services businesses, and suppliers of land and property, which previously could qualify. This risks resulting in significant costs for those previously benefiting from the exemption.
As a result, the Dutch Secretary of State for Finance, Menno Snel, has committed to fixing the situation at the EU level. He also stated that a number of other member states are on board with any such efforts.
ECOFIN on VAT – 22 June 2018
EU finance ministers met at the June ECOFIN to, notably, agree on a number of VAT files. That is, on all except one on VAT quick fixes which will have to be worked on further in the future, as France and Italy vetoed the compromise.
Agreement on several VAT files
On the plus side, member states adopted without issues the EU-Norway VAT Agreement. It provides a legal framework for administrative cooperation in preventing VAT fraud and mutual assistance in recovering VAT claims.
The member states also adopted the Commission’s proposal for making the 15% minimum standard VAT rate permanent, even in the context of an eventual future definitive VAT regime.
And finally, member states adopted the Regulation to improve administrative cooperation to combat VAT fraud.
This is the file which member states attempted to adopt already at the May ECOFIN, but was blocked by France.
Amongst other things, this Regulation will improve the exchange and analysis of information shared by the member states’ tax administration and with law enforcement bodies. It will also strengthen Eurofisc, a network of national tax officials for the exchange of information on VAT fraud. The Regulation will be formally adopted once the European Parliament has given its non-binding opinion.
Where agreement failed – quick fixes
On another file, however, no agreement was reached and a serious stalemate looks increasingly likely, as Italy and France vetoed a prospective political compromise. The file in question concerns the so-called quick fixes for VAT, ahead of more fundamental reforms of the EU VAT system.
Here is a useful overview of the Council negotiations on the recent VAT files, including the quick fixes one. In October 2017, the European Commission proposed four VAT quick fixes concerning:
- Simplified treatment for call-off stock regimes
- The identification number of the client to benefit from a VAT exemption for intra-Community deliveries
- Standard criteria for chain transactions
- A common framework for the documentary evidence required to apply for a VAT exemption for intra-community deliveries
There is broad consensus between the Member states on these four quick fixes. However, the current stalemate is the result of a fifth new quick fix, which was not in the initial Commission proposal: a VAT exemption for groups of taxpayers that pool services and share costs. The latest compromise of the Bulgarian Presidency on the fifth quick fix establishes a territoriality clause which limits the scope of the exemption to groups established in member states that decide to use the option.
France and Italy made their endorsement of the four quick fixes conditional to the rest of the member states agreeing with the fifth quick fix. However, a number of member states and, especially, the European Commission are against the fifth fix, for several reasons:
- The Commission fears that it would harm the integrity of the Single Market
- Limiting its application to only one member state could hinder freedom of establishment
- This fifth quick fix was not part of the Commission’s original proposal, and it might therefore violate the Commission’s right for initiative
Austria was sympathetic to the Franco-Italian cause, but was willing to agree to proceed with the fifth quick fix if the Commission commits to addressing the issue as part of a new, separate proposal. Commissioner Moscovici, at the debate, immediately made such a commitment.
This was not good enough for France and Italy, however, who insisted that they will have to see the full picture before they can agree to the four quick fixes. This means that they will only agree to them if the fifth quick fix is also included, or after seeing and being satisfied with a new separate Commission proposal addressing pooling of services and cost sharing. Thus their decision to veto the proposal this time.
EU Summit re-iterates commitment to digital tax and VAT – 28 June 2018
EU Heads of Government held a major EU summit in June, focusing mostly on migration and Brexit. However, in the post-summit Conclusions, the leaders re-iterate their commitment to advancing with tax work at the EU-level.
More specifically, the Conclusions call on the Council to ‘take work forward’ on the two digital tax proposals. On VAT, member states call for further work to ensure effective ‘VAT collection’, including swift progress on the Commission proposals on short-term measures.
As such, the Conclusions offer little new. In terms of digital tax, the wording is probably as ambiguous as possible with all EU member states endorsing it. However, the Franco-German block has committed to concluding the file by the end of the year, and reportedly the Austrian Presidency might be aiming for a political agreement on the digital services tax (DST) as early as at the 6 November ECOFIN.
On VAT, it is interesting to note that previous leaked versions of the summit Conclusions referred to advancing work on the single VAT area. However, probably because several member states are feeling increasingly uneasy about the definitive regime, the wording was changed to something milder.
Court of Justice of the EU – Rulings
C‑660/16 and C‑661/16: Deduction of input tax – 31 May 2018
The Fifth Chamber of the CJEU has ruled that a potential buyer may not be refused the right to deduct VAT relating to a payment on account in respect of the goods in question where that payment has been made and received and where, at the time that payment was made, all the relevant information concerning the future supply could be regarded as known to that buyer and the supply of those goods appeared to be certain. However, that buyer may be refused that right if it is established, having regard to objective elements, that, at the time the payment on account was made, he knew or should reasonably have known that that supply was uncertain.
Moreover, the VAT Directive does not preclude a national law or practice which has the effect of making adjusting the VAT relating to a payment on account for the supply of an item conditional upon that payment being refunded by the supplier.
Case C‑665/16: VAT and the transfer of the ownership of a property – 13 June 2018
The Seventh Chamber of CJEU has ruled that the VAT Directive must be interpreted as establishing that a transfer of ownership of immovable property belonging to a taxable person for VAT purposes to the Public Treasury of a member state, carried out in accordance with the law and in return for a payment of compensation, constitutes a transaction subject to VAT in a situation where the same person simultaneously represents the expropriating authority and the municipality that is the subject of the expropriation and where the latter continues the practical management of the relevant property, even if the payment of compensation has been made only by means of an internal accounting transfer within the budget of the municipality.
C‑421/17: VAT on transfer of share transactions – 13 June 2018
The Seventh Chamber of the CJEU has ruled that the VAT Directive must be interpreted as meaning that the transfer by a limited company to one of its shareholders of the ownership of immovable property, made as consideration for the buy-back, by that limited company, under a mechanism for the redemption of shares provided for in national legislation, of shares held in its share capital by that shareholder, constitutes a supply of goods for consideration subject to VAT provided that that immovable property is used in the economic activity of that limited company.
C‑108/17: evidence of dispatch or transport of goods for VAT purposes – 20 June 2018
The Fourth Chamber of the CJEU has ruled, notably, that the VAT Directive precludes the competent authorities of a member state from refusing a VAT exemption on importation on the sole ground that, following a change of circumstances after the importation, the goods in question have been supplied to a taxable person other than the person whose VAT ID was stated in the import declaration, where the importer has communicated all the information on the identity of the new purchaser to the competent authorities of the member state of import, provided that it is shown that the substantive conditions for the exemption of the subsequent intra-Community supply are actually satisfied.
The ruling establishes additional interpretations for the case in question.
C‑459/17 and C‑460/17: turnover taxes and right to deduct input tax – 27 June 2018
The Sixth Chamber of the CJEU has ruled that EU law relating to turnover taxes must be interpreted as meaning that, in order to deny a taxable person in receipt of an invoice the right to deduct the VAT appearing on that invoice, it is sufficient that the authorities establish that the transactions covered by that invoice have not actually been carried out.
C‑320/17: Input VAT deduction – 5 July 2018
The Seventh Chamber of CJEU has ruled that in the VAT Directive, the letting of a building by a holding company to its subsidiary amounts to ‘involvement’ of the subsidiary, which must be considered to be an economic activity. This gives rise to the right to deduct VAT on the expenditure incurred by the company for the purpose of acquiring shares in that subsidiary, where that supply of services is made on a continuing basis, is carried out for consideration and is taxed, meaning that the letting is not exempt, and there is a direct link between the service rendered by the supplier and the consideration received from the beneficiary.
Expenditure connected with the acquisition of shareholdings in subsidiaries incurred by a holding company which involves itself in the subsidiaries’ management by letting them a building and which, on that basis, carries out an economic activity has to be regarded as belonging to its general expenditure and the VAT paid on that expenditure must, in principle, be capable of being deducted in full.
Expenditure connected with the acquisition of shareholdings in subsidiaries incurred by a holding company which involves itself in the management of only some of those subsidiaries and which, with regard to the others, does not, by contrast, carry out an economic activity must be regarded as only partially belonging to its general expenditure, so that the VAT paid on that expenditure may be deducted only in proportion to the expenditure which is inherent in the economic activity, in accordance with the apportionment criteria defined by the member states, which, when exercising that power, must have regard to the aims and broad logic of that directive and, on that basis, provide for a method of calculation which objectively reflects the part of the input expenditure actually to be attributed, respectively, to economic and to non-economic activity, which it is for the national courts to ascertain.
C 544/16: VAT in the context of credits and auctions – 5 July 2018
The Fifth Chamber of CJEU has ruled that:
- VAT Directive must be interpreted as meaning that the issue of ‘credits’ which allow an operator’s clients to bid in the auctions that it organises, are a supply of services for consideration, for which the consideration
- The value of ‘credits’ used in order to bid is not included in the consideration received by the taxable person in return for the supplies of goods that it makes for the benefit of users who won an auction organised by
- When interpreting the relevant provisions of EU and national law, courts of a member state that find that the same transaction has been the object of a different tax treatment for the purposes of VAT in another member state have the power, or even – depending on whether there is a judicial remedy under national law against its decisions – an obligation, to refer a request for a preliminary ruling to the Court
International
Britain hints at staying in European VAT area after Brexit? – 7 June 2018
According to Financial Times’ interpretation, the UK may be considering to stay in the EU VAT area even after Brexit.
FT bases its assumption on a leaked letter, according to which the UK government “aims to keep VAT processes after EU exit as close as possible to what they are now”. A major concern for the UK is the potential VAT revenue losses from online sales and mail order from the EU after Brexit.
However, this would mean that the UK will remain bound by EU rules and the Court of Justice of the EU. This was supposed to be one of Theresa May’s red lines, so it remains to be seen whether the UK remaining in the VAT area is a real prospect.
Link: https://www.ft.com/content/1de61f96-6736-11e8-8cf3-0c230fa67aec
Other News
UEAPME comments on VAT rates reform and special scheme for SMEs – 30 May 2018
The Brussels-based association representing Europe’s SMEs, UEAPME, has published position papers on the Commission’s proposed VAT rates reform and the special scheme for SMEs.
On VAT rates reform, UEAPME emphasises that any liberalisation of VAT rates should not lead to further fragmentation in the Single Market or additional burdens for businesses.
Thus, for example UEAPME supports the introduction of additional reduced VAT rates if the EU provides a fully functioning online portal in all its languages, and if it is ensured that companies can rely on the information received from it. The web portal should inform companies automatically on changes of rates and rules in other countries.
Moreover, UEAPME maintains that a single VAT rate – reduced or normal – should apply independently of whether the buyer is a private person or a company.
On the special scheme for SMEs, UEAPME welcomes the possibility to make VAT exemptions available also for cross border activities of small enterprises, and to allow micro enterprises to profit from simplification even if they are not exempted in particular. However, UEAPME is also concerned about additional risks to create unfair competition between SMEs which can profit from exemptions and those that cannot.
Furthermore, UEAPME recommends not introducing a national threshold next to the overall EU threshold of EUR 100.000. And finally, companies that are eligible to benefit from the SME simplification scheme should have the option to opt out of it, if they so wish.
Link: https://ueapme.com/IMG/pdf/180530_UEAPME_comments_on_EU_VAT_rates.pdf
Technology Groups criticise EU Digital Tax proposals – 25 June 2018
A coalition of businesses and tech groups have expressed to the European Commission their dissatisfaction with the Commission s digital tax proposals. They fear that the Commission proposals, especially the short-term measure introducing a so-called digital services tax (DST), would harm EU s competitiveness and risk leading to double-taxation. They call instead for the Commission and member states to advance multilateral work at the OECD-level, rather than proceeding with unilateral national or EU-level measures.
EU Auditors to examine VAT and customs duties in e-commerce – 5 July 2018
The European Court of Auditors (ECA) is conducting an audit to find out how effectively the EU is addressing the challenges posed by e-commerce in terms of VAT and customs duties.
ECA will examine the European Commission’s regulatory and control framework for e-commerce and cooperation between member states to ensure that VAT and customs duties on e-commerce transactions are collected in full.
