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EU VAT

About the authors: Professor Dr. Eleonor Kristoffersson is one of the leading VAT experts in Europe. She is often hired as a speaker at international tax conferences and has a long publication list in VAT and other tax topics. Associate Professor Dr. Pernilla Rendahl is one of the leading experts on VAT and digital commerce in Europe. She is participating in several internationally renowned research groups including research on VAT and environmental taxes, particularly taxation of chemical cocktails.

Eleonor Kristoffersson & Pernilla Rendahl

VALUE ADDED TAXES exist in more than 160 countries around the world. The EU VAT is a tax providing substantial revenues for the Member States in the EU and is linked to each Member State’s fee to the European Union. It is an indirect tax aiming to tax consumption. The EU VAT system is a dual tax system co-existing at both national and EU level. This textbook aims at providing introductory knowledge for understanding the EU VAT at the EU level. This book is thought for university students, lawyers and people who work in tax administration, economists of public finances, with business administration and in accountancy firms. It gives the reader a solid introduction to the EU VAT system with references to the most important case law of the Court of Justice of the EU.

2 ISBN 978-91-7737-071-0

2nd edition

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EU VAT Eleonor Kristoffersson & Pernilla Rendahl


Textbook on EU VAT With preface by Michael Lang Second edition eleonor kristoffersson pernilla rendahl


Preface This textbook addresses an area of taxation which has been gaining importance in recent years and will also gain even more importance in future years. Value Added Tax (VAT) is on the rise: in a national, EU as well as global context. Currently, already more than 150 countries worldwide levy a VAT-like tax. Apart from the new introduction of VAT, many states have also taken measures to increase their already existing indirect taxes. The reasons for this rise of VAT are manifold: From an economic perspective, VAT is seen as a neutral tax and less detrimental to economic growth than income taxes. From an administrative perspective, VAT is relatively easy to manage, as the collection of the tax is mainly outsourced to businesses. In addition, VAT has also a comparatively high capacity to raise tax revenues which may be, indeed, the major driver for its popularity. As states are – due to the economic and financial crisis – constantly struggling to achieve fiscal sustainability without harming economic growth, VAT seems to be the logic choice. In an EU perspective, VAT has a unique position compared to other taxes, in particular direct taxes. It is the only tax which has been substantially harmonized. In contrast to direct taxes – an area where Member States still remain extensive sovereignty – harmonization of national VAT rules was considered as indispensable to ensure the establishment and the functioning of the EU internal market. Therefore, indirect taxes (including ‘turnover taxes’) were (and are still) explicitly mentioned in the provisions of the Treaty (Art 113 TFEU) and have already been harmonized beginning with


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Textbook on EU VAT

the year 1967. The importance of VAT for the EU internal market is even more highlighted by the fact, that VAT – although not directly collected for the EU – affects the EU financial interests, since the harmonized VAT assessment bases determined by the VAT Directive constructs the basis for Member States’ financial contributions to the EU budget. Based on its importance for the EU internal market, the European Commission is constantly trying to improve the EU VAT system, in particular the efficiency of tax collection, the fight against fraud and abuse and the readiness for the changing digital environment. The recently published Action Plan on VAT (COM(2016) 148) shows that there are a number of substantial changes on the agenda leading to a simplified and more efficient system. The aim of a “single EU VAT area” fostering growth and welfare is still not achieved. Besides the growing recourse to VAT in a national and EU context, also the OECD has only recently begun to devote more attention to the VAT area. In the year 2012 a “Global Forum on VAT” was established: a platform for a worldwide dialogue on the design and operation of VAT. As a result of these discussions starting with 2014 the OECD has published “International VAT/GST Guidelines” summarizing general principles for national VAT regimes and proposing solutions for specific international issues. Although these guidelines are of political importance only and do not have any binding or enforceable character (“soft law”), this new focus by the OECD confirms the importance of VAT for national authorities and the international environment. This growing reliance on VAT and the increasing international cooperation implies that there is a strong and ever-growing need for a great number of well-trained and qualified practitioners, scholars and researchers in the area of VAT. This book – addressed at students, non-VAT experts and also non-EU researchers – will substantially contribute to build up a broad knowledge base. The book gives a well-structured and comprehensive overview on the EU VAT system including the basic EU law principles relevant for VAT and the fundamentals of the EU VAT system. Besides the more basic sections,


Preface

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the book also provides both an easy reading and comprehensible, but also comprehensive overview on the sometimes very technical and detailed EU VAT rules on taxable persons, taxable transactions, the place-of-supply rules, the taxable amount, input VAT deduction, various rates and exemptions. I am convinced that this excellent book will help students and researchers worldwide to build up a basic knowledge on the EU VAT system. Michael Lang

Preface to 2nd edition In this second edition the book is updated to where the law stands in July 2019. Since the first edition in 2016 changes to existing directives and regulations have been adopted, mostly related to reaching the goal of a single EU VAT area. The CJEU has also clarified the law substantively through its rich case law.


Table of content Preface  5 Abbreviations  13 1 Introduction  15 2 The whys and wherefores of VAT  17 2.1 General 17 2.2 How VAT works  17 2.3 The history of VAT  19 2.4 VAT at large  21 2.5 Moving towards a single VAT area  22

3 EU VAT sources  24

3.1 EU VAT as part of EU law  24 3.2 Basic EU law  24 3.3 The CJEU  26 3.3.1 The Court and its various procedures  26 3.3.2 Interpretative methods  28 3.4 Principles ensuring the effects of EU law at national level  31 3.5 The principle of prohibition of abusive practices  35 3.6 Concluding remarks  36

4 The scope of VAT  37

4.1 General 37 4.2 The cumulative effects of concepts  37 4.3 Outside the geographical or substantial scope of VAT  39 4.4 Concluding examples  39

5 Taxable persons  41 5.1 Introduction 41


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Textbook on EU VAT 5.2 The general definition of a taxable person  42 5.2.1 Economic activity  42 5.2.2 Independence 44 5.2.3 Optional rules  46 5.3 VAT Groups  47 5.4 Public bodies  48 5.5 Concluding remarks  49

6 Taxable transactions  51

6.1 Introduction 51 6.2 The supply of goods  52 6.2.1 The supply of goods under the obligatory rules in the VAT Directive  52 6.2.2 Optional rules regarding the supply of goods  54 6.2.3 The transfer of a business or part thereof (goods)  56 6.2.4 Intra-Union supplies  57 6.3 The supply of services  58 6.3.1 The supply of services under the obligatory rules in the VAT Directive  58 6.3.2 Optional rules regarding the supply of services  60 6.3.3 The transfer of a business or part thereof (services)  60 6.4 Intermediaries 61 6.5 For consideration  61 6.6 Intra-Union acquisitions of goods  63 6.7 The importation of goods  66 6.8 Concluding remarks  66

7 The place of taxable transactions  68

7.1 General 68 7.2 The supply of goods  70 7.2.1 The different subcategories  70 7.2.2 The supply of goods without transport  72 7.2.3 The supply of goods that are transported  72 7.2.4 The supply of goods on passenger transport  77 7.2.5 The supply of goods that are installed or assembled  78 7.2.6 The supply of gas, electricity, heat or cooling energy  80 7.2.7 The supply of goods to and from third countries  80 7.2.8 Concluding examples  81 7.3 Intra-Union acquisitions  82 7.3.1 Subcategories of intra-Union acquisitions  82 7.3.2 Basic intra-Union acquisitions  83


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7.3.3 Triangular intra-Union acquisitions  84 7.3.4 New means of transport  87 7.3.5 Concluding examples  88 7.4 The supply of services  89 7.4.1 General 89 7.4.2 Identifying the status of the supplier and the acquirer  89 7.4.3 General rules  92 7.4.4 Services supplied by intermediaries  100 7.4.5 Services connected with immovable property  102 7.4.6 Transportation services  105 7.4.7 Heterogenic group of services taxed at the place where they actually take place or are physically carried out  106 7.4.8 Restaurant and catering services  111 7.4.9 Hiring of means of transport  112 7.4.10 Digital supplies  115 7.4.11 Certain services supplied to non-taxable persons outside the EU  125 7.4.12 The prevention of double taxation or non-taxation  126 7.5 The place of importation of goods  127 7.6 Concluding remarks  128

8 Taxable amount and tax rates  129

8.1 Introduction 129 8.2 Taxable amount  130 8.2.1 The taxable amount for the supply of goods or services  130 8.2.2 The taxable amount for intra-Union acquisitions  131 8.2.3 The taxable amount of the importation of goods  132 8.2.4 Anti-avoidance rules  132 8.3 Tax rates  133 8.4 Composite transactions  134 8.5 Concluding examples  135

9 Exemptions  137

9.1 Introduction 137 9.2 General provisions  137 9.3 Exemptions for certain activities in the public interest  138 9.3.1 Public postal services  138 9.3.2 Hospital and medical services  139 9.3.3 Human organs, blood and milk  142


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Textbook on EU VAT 9.3.4 9.3.5 9.3.6 9.3.7 9.3.8 9.3.9

Dental technicians  142 Independent groups of persons  143 Welfare and social security work  144 The protection of children and youngsters  145 Educational services  146 The supply of staff by religious or philosophical institutions 147 9.3.10 Trade unions  147 9.3.11 Sport and physical education  148 9.3.12 Cultural services  149 9.3.13 Fund-raising services  149 9.3.14 Transport for sick or injured persons  150 9.3.15 Public radio and television bodies  150 9.4 Exemptions for other activities  151 9.4.1 General 151 9.4.2 Financial and insurance transactions  151 9.4.3 Postage stamps  157 9.4.4 Gambling and betting  157 9.4.5 Immovable property  158 9.5 Exemptions for intra-Union acquisitions, imports and exports  159

10 Deduction and refund of input VAT  161

10.1 Introduction  161 10.2 The main rule – for the purposes of taxed transactions  163 10.2.1 General  163 10.2.2 Used for private purposes  165 10.2.3 Starting up and shutting down activities  167 10.2.4 Fraudulent transactions  168 10.3 Mixed activities  168 10.3.1 General  168 10.3.2 The pro-rata calculation  169 10.3.3 Alternative calculations  171 10.3.4 Activities outside the scope of VAT  173 10.4 Exercising the right of deduction  174 10.5 Adjustment of input VAT  175 10.6 Concluding remarks  177

Additional reading  179 Cases from the CJEU  181 Index  191


Introduction

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1 Introduction This textbook aims to describe the core features of value added tax (VAT) at the EU level. EU VAT is a dual system, co-existing at both the EU and national levels. The main objective of the book is to assist students learning the basics of EU VAT. However, it may also prove useful for those familiar with VAT at the national level, but less familiar with VAT at the EU level. The background information used for this book is primarily EU directives and regulations as well as case law from the Court of Justice of the European Union (CJEU) covering the basics of EU VAT. There are numerous cases concerning VAT issues at both the EU level and from different national courts. Moreover, the Organisation for Economic Co-operation and Development (OECD) has developed international guidelines as more than 160 countries around the world use VAT as a means of taxing consumption. Since this book is introductory in nature, additional reading material is provided at the end. The following chapter explains how VAT works technically and gives some historical background. The third chapter sets EU VAT in a general EU law perspective to explain the dual system of EU VAT. Chapter four explains the scope of EU VAT. The fifth and sixth chapters cover the fundamental concepts of taxable persons and taxable transactions. In the seventh chapter the place of taxation is explained for the different types of taxable transactions that exist at the EU level. Chapter eight covers the taxable amounts and the different rates that may apply to taxable transactions whereas Chapter


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Textbook on EU VAT

nine explains the main features of exemptions from VAT. In the final chapter, Chapter ten, the core features of deductions and refunds of input VAT are explained.


TEXTBOOK ON

EU VAT

About the authors: Professor Dr. Eleonor Kristoffersson is one of the leading VAT experts in Europe. She is often hired as a speaker at international tax conferences and has a long publication list in VAT and other tax topics. Associate Professor Dr. Pernilla Rendahl is one of the leading experts on VAT and digital commerce in Europe. She is participating in several internationally renowned research groups including research on VAT and environmental taxes, particularly taxation of chemical cocktails.

Eleonor Kristoffersson & Pernilla Rendahl

VALUE ADDED TAXES exist in more than 160 countries around the world. The EU VAT is a tax providing substantial revenues for the Member States in the EU and is linked to each Member State’s fee to the European Union. It is an indirect tax aiming to tax consumption. The EU VAT system is a dual tax system co-existing at both national and EU level. This textbook aims at providing introductory knowledge for understanding the EU VAT at the EU level. This book is thought for university students, lawyers and people who work in tax administration, economists of public finances, with business administration and in accountancy firms. It gives the reader a solid introduction to the EU VAT system with references to the most important case law of the Court of Justice of the EU.

2 ISBN 978-91-7737-071-0

2nd edition

TEXTBOOK ON

EU VAT Eleonor Kristoffersson & Pernilla Rendahl


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