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The EU VAT Treatment of Vouchers (FM nr. 157) 2019/9.8.6
9.8.6 E-money and m-payments
Dr. J.B.O. Bijl, datum 01-05-2019
- Datum
01-05-2019
- Auteur
Dr. J.B.O. Bijl
- JCDI
JCDI:ADS599466:1
- Vakgebied(en)
Omzetbelasting / Levering van goederen en diensten
Omzetbelasting / Bijzondere OB-regelingen
Omzetbelasting / Vergoeding
Voetnoten
Voetnoten
Directive 2009/110/EC of the European Parliament and of the Council of 16 September 2009 on the taking up, pursuit and prudential supervision of the business of electronic money institutions amending Directives 2005/60/EC and 2006/48/EC and repealing Directive 2000/46/EC (Text with EEA relevance), OJ L 267, 10.10.2009, p. 7–17.
Directive 2009/110/EC of the European Parliament and of the Council of 16 September 2009 on the taking up, pursuit and prudential supervision of the business of electronic money institutions amending Directives 2005/60/EC and 2006/48/EC and repealing Directive 2000/46/EC (Text with EEA relevance), OJ L 267, 10.10.2009, p. 7–17.
5th Preamble to Directive 2009/110/EC of the European Parliament and of the Council of 16 September 2009 on the taking up, pursuit and prudential supervision of the business of electronic money institutions amending Directives 2005/60/EC and 2006/48/EC and repealing Directive 2000/46/EC (Text with EEA relevance), OJ L 267, 10.10.2009, p. 7–17.
Article 135(1)(d) of the EU VAT Directive.
See the European Commission’s Green Paper: Towards an integrated European market for card, internet and mobile payments, COM(2011)941 final, 11 January 2012, p. 5.
See the European Commission’s Green Paper: Towards an integrated European market for card, internet and mobile payments, COM(2011)941 final, 11 January 2012, p. 5.
See the European Commission’s Green Paper: Towards an integrated European market for card, internet and mobile payments, COM(2011)941 final, 11 January 2012, p. 5.
See CJEU case C-2/95, Sparekassernes Datacenter (SDC) v Skatteministeriet, ECLI:EU:C:1997:278, paragraph 20.
See CJEU case C-2/95, Sparekassernes Datacenter (SDC) v Skatteministeriet, ECLI:EU:C:1997:278, paragraph 66.
See CJEU case C-2/95, Sparekassernes Datacenter (SDC) v Skatteministeriet, ECLI:EU:C:1997:278, paragraphs 62 and 63.
As mentioned above, in the E-money directive1 only prepaid instruments that are designed to address precise needs that can be used only in a limited way are excluded from the application of that directive. This means that prepaid instruments that can be used for an unlimited amount of transactions,2 which includes instruments that can be used to pay supplies by listed businesses as such instruments are typically designed for a network of suppliers that is continuously growing,3 qualify as e-money. Certain services regarding e-money are covered by VAT exemptions, such as the exemption regarding transactions, including negotiation, concerning deposits (and current accounts), payments, transfers, (debts,) cheques and other negotiable instruments, but excluding debt collection.4
The same exemptions may apply to some services regarding m-payments. M-payments are payments for which the data and payment instructions are initiated, transmitted or confirmed via a mobile phone or device.5 Prepaid phone cards can be used for these payments, even though most m-payments are currently based on (credit) card payment schemes and other solutions, such as payments using prepaid credit, seem to have difficulties entering the market.6 According to the European Commission, some definitions regarding m-payments suggest that the line between e-payments and m-payments is blurred, and may become even more so in the future.7
The above suggests that where credit/money stored on an instrument or online can be used as payment for a (virtually) unlimited amount of supplies by a (virtually) unlimited amount of businesses, some transactions regarding these instruments, such as vouchers, are VAT exempt. The terms used to describe the exemptions are to be interpreted strictly since these constitute exceptions to the general principle that turnover tax is to be levied on all services supplied for consideration by a taxable person.8 In order to be characterized as VAT exempt transactions, the services must, viewed broadly, form a distinct whole, fulfilling in effect the specific, essential functions of a service described in the relevant provisions concerning the VAT exempt transactions. For 'a transaction concerning transfers', the services provided must therefore have the effect of transferring funds and entail changes in the legal and financial situation.9 This means that some specific services provided with regard to the transfer of money stored on vouchers (or online) can be VAT exempt.
The distribution of vouchers is, in my view, not covered by any of the exemptions. Even the distribution of a prepaid phone card is not a service that, in my view, qualifies as a VAT exempt financial transaction but rather as a ‘distribution service’ or a ‘marketing service’ as I explained earlier. Service more or less linked to VAT exempt transactions, such as the transport of funds, and similar examples which might be added, show the need to keep the exemption within the confines of what constitutes its legal object: the financial operations and transaction.10