Einde inhoudsopgave
The EU VAT Treatment of Vouchers (FM nr. 157) 2019/3.1
3.1 Transactions subject to VAT
Dr. J.B.O. Bijl, datum 01-05-2019
- Datum
01-05-2019
- Auteur
Dr. J.B.O. Bijl
- JCDI
JCDI:ADS601727:1
- Vakgebied(en)
Omzetbelasting / Levering van goederen en diensten
Omzetbelasting / Bijzondere OB-regelingen
Omzetbelasting / Vergoeding
Voetnoten
Voetnoten
See Article 2(1) of the EU VAT Directive.
See Article 2(1) of the EU VAT Directive.
Supplies of goods and services can in certain cases lead to a non-taxable person being regarded as a taxable person for that specific supply, but this is outside the scope of this research. See, for example, Article 13 of the EU VAT Directive.
Besides taxable persons acting as such, non-taxable legal persons can also perform intra-Community acquisitions and so can non-taxable persons if the good is a ‘new means of transport’. See Article 2(1)(b) of the EU VAT Directive. The definition of ‘new means of transport’ can be found in Article 2(2) of the EU VAT Directive.
CJEU Case C-215/94, Jürgen Mohr and Finanzamt Bad Segeberg,ECLI:EU:C:1996:72, paragraphs 19-22.
CJEU Case C-289/86, Vereniging Happy Family Rustenburgerstraat and Inspecteur der Omzetbelasting, ECLI:EU:C:1988:360.
Under the EU VAT rules, goods are defined as ‘tangible property’ as well as electricity, gas, heat or cooling energy and the like (Articles 14(1) and 15(1) of the EU VAT Directive). Member States may regard certain interests in immovable property, rights in rem giving the holder thereof a right of use over immovable property and shares or interests equivalent to shares giving the holder thereof de jure or de facto rights of ownership or possession over immovable property or part thereof, as tangible property (Article 15(2) of the EU VAT Directive).
‘Supply of services’ shall mean any transaction which does not constitute a supply of goods (Article 24(1) of the EU VAT Directive).
Four types of transactions are considered subject to VAT in the EU VAT Directive:
the supply of goods,
the supply of services,
the intra-Community acquisition of goods and
the importation of goods.1
Of these four transactions, the supply of goods, the supply of services and the intra-Community acquisition of goods are – as a general rule – only considered subject to VAT if they are performed for consideration, within the territory of a Member State and by a taxable person acting as such.2,3,4 The importation of goods does not need to be performed for consideration nor by a taxable person acting as such for it to be subject to VAT.
Besides the requirements mentioned above, the CJEU has determined that a transaction can only be subject to VAT if there is ‘consumption by an identifiable consumer or group of consumers’5 and if the transaction is not subject to a ‘total legal prohibition on importation and marketing in the EU’.6 As these two elements are not directly relevant for my research, I will assume in the rest of this research that the supplies I describe or use as examples are not subject to a total legal prohibition on importation and marketing in the EU and that there is consumption by an identifiable consumer or group of consumers – unless I specifically indicate otherwise. I will briefly touch upon situations where there is consumption by an identifiable consumer or group of consumers and transactions that are subject to a total legal prohibition on importation and marketing in the EU in Sections 3.8 a) and b) respectively.
From the above, it is clear that a supply of goods, a supply of services and an intra-Community acquisition of goods need to meet certain requirements in order to be considered subject to VAT. Because a relevant part of this research deals with the concept of ‘consideration’, I will first briefly touch upon the other requirements for these transactions to be subject to VAT before examining the requirement that, in order to be subject to VAT, these transactions need to be performed ‘for consideration’.
Focussing on the supply of goods7 and services,8 being the main manifestations of promotional activities and the main supplies that vouchers are redeemed for, these transactions are subject to VAT if they are performed for consideration within the territory of a Member State by a taxable person acting as such. Five elements can be distinguished here:
There must be a supply of goods or services
For consideration
By a taxable person
Acting as such
Within the territory of a Member State.
I will now discuss these elements.