SUU, Alm.del - 2016-17 - Bilag 391: Orientering vedrørende sag om momsfritagelse af fertilitetsbehandling, fra skatteministeren

Sundheds- og Ældreudvalget 2016-17
SUU Alm.del Bilag 391
Offentligt

EUROPEAN COMMISSION

DIRECTORATE-GENERAL

TAXATION AND CUSTOMS UNION

Indirect Taxation and Tax administration

Value added tax

taxud.c.1(2017)3063070

–

Brussels, 29 May 2017

VALUE ADDED TAX COMMITTEE

RTICLE

398

IRECTIVE

2006/112/EC)

ORKING PAPER

925 FINAL

INUTES

108

MEETING

–

AND

28 M

ARCH

2017

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Commission européenne, B-1049 Bruxelles / Europese Commissie, B-1049 Brussel

–

Belgium

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Tel.: +32 2 299 11 11.

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The Chair welcomed the delegations to the 108

meeting of the VAT Committee.

Procedural and housekeeping points

Language regime: It was possible to speak in and listen to FR-DE-EN-ES-IT-PL.

The secretariat of the VAT Committee should be notified in a timely manner about any

staff changes that affect the composition of national delegations and the access rights to

the CIRCABC site.

Next meeting: The next meeting will probably take place at the beginning of December

2017.

Topical issues in the Council

The Chair briefly mentioned the latest developments in Council:

E-commerce: The discussions on the proposal are progressing well. The following

meeting was scheduled for 4 April 2017.

Generalised Reverse Charge: The proposal was put on the agenda of the ECOFIN

Council meeting of 21 March 2017 in order to exchange views and give

orientations on the approach to take in future discussions of the Working Party on

Tax Questions.

VAT rates for e-publications: The proposal was also discussed in the ECOFIN

Council meeting of 21 March and is to be taken up again in the Working Party on

Tax Questions to continue the technical work.

Other topical issues

Fiscalis 2020 Workshop on "Review of the special scheme for small enterprises

under the VAT Directive 2006/112/EC" in

Wrocław

on 20-22 March 2017: The

Chair thanked the Polish delegation for their administration's successful

organisation of the Workshop. The Workshop had been an opportunity for

exchanges between administrations and other stakeholders from which the

Commission services had taken home important input for the preparation of their

legislative proposal for a comprehensive simplification package for SMEs.

DOPTION OF THE AGENDA

(Document taxud.c.1(2017)1563116 REV)

The agenda was adopted as proposed. Changes in the order of treatment of a number

of agenda points were explained and agreed.

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EPORT ON THE RESULTS OF THE WRITTEN PROCEDURES

The Chair stated that the minutes of the 107

meeting of 8 July 2016 had been

agreed in written procedure with comments sent by one delegation regarding the

quality of the machine translation into German.

As to the sets of guidelines already agreed in written procedure, these were all made

available on CIRCABC and had also been made available on the Directorate

General's public website. All guidelines resulting from the last meeting had been

agreed, however, a very limited number of written procedures on guidelines from

previous meetings are still on hold.

A consultation request by Croatia pursuant to Article 102 of the VAT Directive had

been successfully concluded in written procedure on 16 January 2017.

NFORMATION POINTS

The Chair informed delegations that contrary to previous meetings there was

nothing particular to report back from OECD activities on VAT issues.

4.1

LEGISLATION

–

ATTERS CONCERNING

RECENTLY ADOPTED

EU VAT

PROVISIONS

THE

IMPLEMENTATION

Commission

Article 58 and Annex II of the VAT Directive

Article 7 and Annex I of the VAT Implementing Regulation

Subject:

VAT 2015: Scope of the notion of electronically supplied

services; minimal human intervention (second follow-up)

(Document taxud.c.1(2017)1270284

–

Working paper No 919)

The Commission services introduced the Working paper. Delegations were

reminded of the work that had already been undertaken with regard to the issue.

Following first discussions during the 102

meeting guidelines were agreed in

Working paper No 862 FINAL regarding the notion of electronically supplied

services. These guidelines contained first indicators to help assess whether there is

only "minimal human intervention" in a supply which is one of the essential

elements to qualify a service as an electronically supplied service.

On the basis of Working paper No 896, an exchange of views in the 106

meeting

followed up on those initial discussions. Possible additional indicators were

presented and the notion of "minimal human intervention" was further analysed.

During the exchanges it was remarked that Working paper No 896 focused too much

on online gambling services whilst more examples were needed from different

sectors to better capture the meaning of "minimal human intervention". The

Commission services therefore invited delegations after that meeting to contribute

with additional examples from their experience.

The present Working paper No 919 in its section 2 sets out the indicators agreed in

the guidelines resulting from the 102

meeting and the further indicators mentioned

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Origin:

References:

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in Working paper No 896. Section 3 of the Working paper presents a set of

14 additional examples provided by delegations and analyses them with the help of

the indicators already agreed or developed to test whether these are robust and

whether other indicators could be identified in addition. At the end of the Working

paper three additional indicators for "minimal human intervention" were presented

taking into account the analysed examples.

The Chair thanked delegations who had submitted examples for analysis in the

Working paper and then opened the floor for discussions.

Less than half of the delegations took the floor. Apart from some comments on

specific examples in the Working paper there was overall agreement with the

Commission services' analysis. One delegation specifically agreed to the drafting of

guidelines but voiced caution that these should not be overly prescriptive

considering that services were continuously developing.

The Chair concluded that the drafting of guidelines would be attempted taking into

account the remarks made during the discussions.

4.2

Origin:

Subject:

(oral

exchange)

Commission

VAT treatment of vouchers

The Commission services had arranged for an oral exchange in order to facilitate

transposition by Member States of Council Directive (EU) 2016/1065 into their

national law.

Delegations discussed between them a number of issues raised as to the

interpretation of that Directive as regards the VAT treatment of vouchers whose

provisions will be applicable from 1 January 2019.

5.1

UESTIONS CONCERNING THE APPLICATION OF

EU VAT

PROVISIONS

Origin:

Denmark

Reference:

Article 132(1)(b) and (c)

Subject:

VAT treatment of fertility treatments

(Document taxud.c.1(2017)751354

–

Working paper No 916)

The Commission services presented the Working paper that had been drafted

following a request from Denmark. The Danish authorities asked to which extent

fertility treatment is covered by the exemption of Article 132 of the VAT Directive.

They explained that their national case-law had resulted in a practice by which

fertility treatment can only be exempted in certain cases. An ongoing debate at

national level, however, was strongly advocating a general exemption for fertility

treatments and therefore the Danish authorities were also interested in hearing other

delegations' views on the issue.

The Commission services reminded delegations of previous discussions in the VAT

Committee with regard to the exemption for medical care and specifically the

exchanges held on cosmetic surgery for which it also had been difficult to delimit

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the cases where the granting of the exemption could be seen in line with the wording

of the provisions of the VAT Directive. The Commission services stressed that,

given that the pertinent VAT legislation dates from 1977 and medical science and

technology had in the meantime evolved considerably, interpretation issues had

become inevitable. The doctrine derived from rulings of the Court of Justice of the

European Union (CJEU), however, clearly demanded a strict interpretation of the

exemptions and therefore caution and unanimity would be needed in order to agree

on a broader approach.

The Chair invited the Danish delegation to take the floor. The Danish delegation

thanked the Commission services for their analysis of the issues tabled and stated

that they were particularly content that the Commission services shared their view

that the exemption could apply even when the fertility treatment is given to the

partner in a heterosexual couple who does not suffer from infertility or reduced

fertility. They insisted, however, that the exemption should also be extended to

cover single women or women in a homosexual relationship with no indication of

infertility/reduced fertility.

In the ensuing discussions less than half of the delegations asked for the floor. The

majority of them favoured a broad application of the exemption for fertility

treatments, even in cases where no medical condition exists. A few delegations,

however, stated that the wording of the Directive should be respected and that

fertility treatments should be exempt for medical reasons only.

The Chair concluded that delegations seemed to be in favour of a broad application

of the exemption and announced that the Commission services would proceed with

drawing up guidelines on the issue, paying particular attention to ensuring a

unanimously agreed line.

5.2

Origin:

Reference:

Subject:

France

Article 135(1)(b)

Possible qualification of advisory services

intermediaries as negotiation of credit

(Document taxud.c.1(2016)6870737

–

Working paper No 912)

credit

The Commission services introduced the Working paper established in response to a

request from France. The scenario submitted by the French authorities for analysis

and discussion is the following: A taxable person, the "credit intermediary", supplies

financial advisory services in respect of credits relating to immovable property to his

client, a potential borrower. The financial advice would consist in making personal

recommendations to the client in view of the client's signing of a mortgage contract

with a third party credit provider, for example a bank. Such financial advice would

be part of preparatory work leading to the negotiation of credit and independent

from the conclusion of a possible mortgage agreement with a third party. The "credit

intermediary" in this scenario gives his advice to the borrower independently and

does not act as a mediator between the parties to the credit contract.

The Commission services had arrived at the conclusion that considering the current

VAT provisions and the pertinent case-law it would seem that the "credit

intermediary" in the scenario at hand provides financial advice only and that

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therefore the exemption pursuant to Article 135(1)(b) of the VAT Directive cannot

be granted on the basis of it constituting "negotiation of credit". "Negotiation of

credit" which could be exempted would require a distinct act of mediation between

the two parties to a credit contract which is not the case in the scenario at hand.

If, however, the "credit intermediary" acted as an intermediary between the two

parties to the credit contract his provision of financial advice could be seen as

ancillary to an exempt principal supply which consists in the negotiation of credit

and could thus also be exempted.

The Chair invited the French delegation to take the floor. The French delegation

explained the context that had triggered their question and thanked the Commission

services for having taken it up.

Several other delegations contributed to the exchange with some stating that they

shared the Commission services' analysis. One delegation pointed out that their

national rulings on the matter were contrary to the position taken by the Commission

services.

In reply to doubts voiced, the Commission services remarked that in their view it is

not important for the VAT treatment whether a credit agreement is finally concluded

or not. Negotiation that in the end does not lead to a credit contract could still fall

under negotiation of credit and could be exempted. They further underlined that

there is no legal basis to exempt mere advisory services under Article 135(1)(b)

unless provided in the context of a distinct act of intermediation, as already

explained.

Concluding, the Chair stated that the preparation of guidelines might be useful.

5.3

Commission

Articles 2(1)(c) and 135(1)(b) and (d)

VAT treatment of transactions involving non-performing loans

(NPLs)

(Document taxud.c.1(2017)829746

–

Working paper No 917)

The Commission services briefly presented the Working paper which they had

prepared at their own initiative in order to discuss and assure a consistent VAT

treatment of transactions dealing with non-performing loans (NPLs) which are still a

common feature in the aftermath of the economic crisis. They explained that the

Working paper looks into the VAT treatment of the sale of NPLs from the point of

view of the seller and from that of the purchaser as well as that of services consisting

in the management of NPLs that are supplied by so-called servicing companies to

holders of NPLs. For all cases an assessment is carried out whether there is a taxable

supply of services and, if that is found to be the case, it is examined whether an

exemption pursuant to Article 135(1) could be applicable.

Following the presentation a short discussion took place with the participation of

several delegations that shared the analysis of the Commission services and also

made some remarks on specific points or asked for clarifications.

Origin:

References:

Subject:

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The Chair announced the drafting of guidelines that would also try to address the

issues raised during discussions.

5.4

Origin:

Reference:

Subject:

Commission

Article 11

Meaning of "financial, economic and organisational links"

among VAT group members

(Document taxud.c.1(2017)982178

–

Working paper No 918)

The Commission services gave their introduction to the Working paper. They

explained that it had been established in follow-up to the in-depth discussions held

during the Fiscalis 2020 Seminar on "Modernising VAT Groups" in Dublin in

September 2016 which had brought together representatives of national

administrations in the Group on the Future of VAT (GFV) and business

representatives who are members of the VAT Expert Group (VEG).

The conclusions at the Seminar had been that more clarity was needed on how to

interpret the provisions in Article 11 of the VAT Directive after some recent rulings

handed down by the CJEU that partly run counter to what the Commission had

expressed in its Communication on VAT Grouping in 2009. There had been

consensus among Seminar participants that before contemplating possible legislative

changes to the grouping provisions in the VAT Directive updated guidance on how

to understand the concept of "financial, economic and organisational links" should

be prepared as a short-term realistic goal in order to provide more legal certainty for

both businesses and tax administrations.

After the

CJEU’s

judgments it was clear that the bar had to be lowered as to the

minimum conditions for determining the existence of a financial link between VAT

group members. The Working paper therefore sought to suggest what could be

options for the minimum content of the financial link test and possible presumptions

for the assessment of such link. The Working paper also examined the economic and

organisational links with the objective to clarify their meaning. The Commission

services expressed that this requirement in the VAT Directive is a threefold

cumulative condition, and that the three links have to be assessed separately.

In the ensuing discussions less than half of the delegations asked for the floor with

some of them intervening more than once.

As to the Commission services' approach of the issue as such, delegations were split

in two groups. One group disagreed that there should be uniform EU-wide tests with

regard to the links and insisted that the definition of links should be done at national

level. They held that harmonisation could only be brought about by legislative

changes and not by guidance. It was also said that, while agreeing with the fact that

the three links have to be simultaneously present, it would be better to define one

condition which could cover all of them, rather than laying down three different

definitions (one for each link). The other group followed the Commission services in

that it was appropriate to seek to define minimum standards and concurred that all

three links mentioned in the VAT Directive should be assessed.

The Chair in response to a number of remarks reiterated that at the Fiscalis 2020

Seminar there had been demands expressed for clarification and a wish for guidance

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expressed by both Member States and businesses. As the matter concerned the

interpretation of existing rules, the VAT Committee, and not the GFV, was the

appropriate forum for exchanges with the national administrations. The Commission

services also intended to discuss the Working paper at the next meeting of the VEG.

Further, concerning the links tests, reading Article 11 of the VAT Directive it was

evident that the existence of financial, economic and organisational links was meant

as a cumulative requirement. With intra-group transactions falling outside the scope

of VAT, obviously there should be a minimum of requirements to be met for

forming a VAT group and Member States could not do whatever they wished in that

matter.

During the second part of the exchanges, several delegations took the floor to

comment on the concrete options and presumptions as set out by the Commission

services in the Working paper. In response to the remarks, the Chair gave

clarifications and also stated to take good note of the different opinions expressed.

No firm conclusions could be drawn from the difficult discussions. The Commission

services would reflect on how to take this further and all delegations were invited to

send comments. Discussions with stakeholders on the issue would take place in the

VEG meeting on 24 April 2017.

5.5

Origin:

Commission

References:

Articles 2(1), 72, 73, 80, 83 and 85

Subject:

Possible

VAT implications of Transfer Pricing

(Document taxud.c.1(2017)1280928

–

Working paper No 923)

The Chair made a few introductory remarks explaining that the Working paper was

on purpose kept high-level, without going into too much detail, to have a first

exchange of views in order to gauge the interest of the delegations and their thinking

regarding the relevance of the issue of transfer pricing with regard to VAT. In

parallel, a "mapping exercise" was being conducted in the EU VAT Forum with

representatives of national administrations and business stakeholders. It was also

foreseen to bring the subject matter to the next meeting of the VEG.

The Commission services then presented the different parts of the Working paper.

Its section 2 is dedicated to the legal framework and the basic concepts of transfer

pricing, such as the arm's length principle and transfer pricing adjustments either

made by the tax administration or by the taxpayer, that are of potential interest from

a VAT perspective.

Section 3.1 looks at the VAT provisions on the taxable amount (Article 73 of the

VAT Directive) and the VAT Directive's equivalent to the arm's length principle

(the open market value pursuant to Articles 72 and 80). According to the settled

case-law of the CJEU, for VAT purposes the taxable amount for the supplies of

goods or services is represented by the consideration actually received for them. The

open market value has a much narrower scope than the arm's length principle for

transfer pricing purposes in direct taxation and only applies under a set number of

exhaustive conditions as an anti-avoidance measure which is to be considered an

exception to the general rule.

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Under section 3.2 it is assessed whether transfer pricing adjustments could have

VAT implications. That might be the case where the transfer pricing adjustment

could be regarded as higher or lower consideration given in exchange for a taxable

supply already made that then leads to a modification of the taxable amount of that

transaction for VAT purposes. A case-by-case analysis would need to establish

whether there is a supply made in exchange for consideration and whether there is a

direct link between the supply and the consideration. However, the general rule as

regards the taxable amount is that laid down in Article 73 and therefore transfer

pricing adjustments for direct taxation purposes should not all result in a

modification of the VAT taxable amount as this would go against the spirit of the

VAT Directive.

Finally, section 3.4 of the Working paper sets out guidance on what has to be kept in

mind when discussing on the interaction between transfer pricing and VAT and the

possible VAT implications of transfer pricing.

After the presentation the Chair invited comments from the delegations. Several

delegations asked for the floor. There was consensus that the Working paper was

most welcome as it raised awareness of the issue. The delegations that engaged in

the discussions all stressed that there were no particular problems that had been

brought to their attention and also reported that the rather keen interest in the subject

matter shown by business stakeholders in the EU VAT Forum was then not followed

up by them concretely with clarifications and examples of cases to discuss.

The Chair concluded the following:



The Commission services had thought it necessary to bring the issue of transfer

pricing to the VAT Committee for a first exchange.

Transfer pricing could have an impact in some concrete cases, but those would

be subject to a case-by-case assessment. In that respect it was noted that whilst

business stakeholders had raised transfer pricing as an issue no concrete

examples had yet been submitted for discussion. The subject matter would

therefore be tabled at the next VEG meeting for exchanges.

The Commission services for the time being would not produce additional

Working papers on the issue unless delegations raised specific angles to assess

more in depth. The present Working paper would, however, be put again on the

agenda of the next VAT Committee as a reminder for delegations to reflect

further and for the Commission services to report back from the feedback

obtained in the VEG meeting.



5.6

Origin:

Reference:

Subject:

Germany

Article 138

Substantive importance of the VAT identification number of the

recipient (acquirer of the goods) for the exemption of intra-

Community supplies

(Document taxud.c.1(2017)1395441

–

Working paper No 921 REV)

The Commission services presented the Working paper established upon a request

from Germany, already submitted in 2015, and explained that the discussion in the

VAT Committee had been put on hold in the await of the ruling of the CJEU in case

C-24/15,

Plöckl,

delivered on 20 October 2016. Further, this ruling had been

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followed by another one on the same subject matter in case C-21/16,

Euro-Tyre,

delivered on 9 February 2017.

At the time that Germany transmitted the request two CJEU rulings dating back to

September 2012 had already dealt with the importance of the VAT identification

number in the context of intra-Community supplies (cases C-273/11,

Mecsek-

Gabona Kft,

and C-587/10,

VSTR).

After the four aforementioned rulings on this

issue the CJEU had made clear that in the context of intra-Community supplies of

goods the communication of the VAT identification number of the acquirer of the

goods constitutes a formal requirement as regards the right of the supplier to exempt

his intra-Community supply. However, the supplier cannot be refused exemption on

the grounds of not having provided the VAT identification number of the acquirer

when the substantive conditions set out in Article 138(1) of the VAT Directive are

met.

The Commission services concurred with the German delegation that the VAT

identification number is for the supplier a means of proving that the acquirer is a

taxable person acting as such in a Member State other than that where dispatch of

the goods begins and that a missing VAT identification number from the acquirer

should be a signal to the supplier that the transaction is risky. However, the VAT

provisions as they currently stand do not leave room for a blanket refusal of granting

exemption to the supplier when there is conclusive evidence that the substantive

conditions of the exemption have been met. Only a change of the legislative

provisions could enhance the status of the VAT identification number.

Notwithstanding the above, where fraud has occurred and the supplier has not acted

in good faith, or has not taken all measures which can be reasonably required to

satisfy himself that the transaction carried out had not resulted in a participation in

VAT fraud, the tax authorities should refuse the exemption. Further, if the supplier

is unable to produce the VAT identification number of the acquirer, Member States

could impose appropriate and proportionate sanctions on that supplier for not having

met this formal condition of the exemption.

The German delegation thanked the Commission services for having treated their

question and for sharing their concerns as to the importance of the VAT

identification number.

The Chair, after reminding delegates that the VAT Committee could only decide on

guidelines but could not discuss legislative proposals, invited all the other

delegations to voice their views.

Less than half of the delegations asked for the floor. They all shared the analysis

made by the Commission services and the concerns uttered by the German

delegation. Nearly all of them also expressly supported the drafting of guidelines

and asked for a legislative proposal on the matter. A few delegations remarked that

guidelines should be drafted with caution as not to undermine the CJEU rulings.

Concluding, the Chair announced that having taken note of all interventions and the

concerns expressed the Commission services would draft a set of guidelines in a

careful manner and would prepare a legislative proposal for adoption by the

Commission during 2017.

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* 5.7

Origin:

References:

Subject:

Austria

Articles 2, 9, 13, 24(2) and 151

VAT treatment of the "EU SatCom project" by the European

Defence Agency

(Document taxud.c.1(2017)1271091

–

Working paper No 920)

[…]

5.8

Origin:

References:

Subject:

Poland

Articles 167, 168, 173, 174, 184, 185 and 187

Adjustment of input VAT deduction where a taxable person is

carrying out both economic activities and non-economic

activities

(Document taxud.c.1(2017)1279716

–

Working paper No 922)

The Commission services introduced the Working paper that had been drafted upon

a request by Poland. The Polish authorities sought clarification on the possibility of

adjusting input VAT deduction where a taxable person performs economic activities

as well as non-economic activities outside the scope of VAT, such as activities

performed in his capacity of a public authority or the activities of associations and

foundations which are not carried out for consideration. The Polish authorities asked

concretely whether such a taxable person can perform a positive adjustment in his

favour in respect of input VAT incurred on capital goods used partly for his

economic and partly for his non-economic activities where the initially allocated

part for economic activities has increased.

The Commission services stated that they fully shared the view of the Polish

authorities that there is the obligation for a taxable person to perform a negative

adjustment of the initially deducted input tax in cases where the initial use of the

capital goods for business purposes decreases whilst in the opposite case of a later

increase in the use of the capital goods beyond the initially allocated proportion no

positive adjustment can be carried out.

They further explained that there is extensive case-law by the CJEU that the

deduction scheme established by the VAT Directive relates to all economic

activities, whatever their purpose or results, provided that they are themselves

subject to VAT. Consequently, input VAT incurred by a taxable person on

expenditure relating to non-economic activities, as these fall outside the scope of

VAT, cannot give rise to the right of deduction of VAT. Additionally, where a

taxable person simultaneously carries out economic activities (taxed or exempt) and

non-economic activities falling outside the scope of VAT, deduction is allowed only

to the extent that the expenditure in question is attributable to the taxable person's

economic activity.

Article 167 of the VAT Directive provides for a right to deduct which arises at the

time the deductible tax becomes chargeable which pursuant to Article 63 is the time

when the goods (or services) are delivered. This means for the scenario submitted by

Poland that only the capacity in which a person is acting at the time when the capital

goods are delivered to him can determine the existence of the right to deduct. To

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obtain a right to deduct in respect of these capital goods, the person has to be a

taxable person and act as such at the time of their purchase.

When, for example, bodies governed by public law within the meaning of Article 13

of the VAT Directive at the time of their purchase of capital goods act as public

authorities they shall not be regarded as taxable persons and therefore not have any

right of deduction with regard to that purchase and thus no right to adjustment can

arise.

According to the case-law of the CJEU the term "for purposes other than those of his

business" in Article 26 of the VAT Directive has to be interpreted as meaning that

the provision only applies where the goods concerned are put to private use and not

where they are put to another use as part of a non-taxable activity. Activities which

are outside the scope of VAT, such as those performed as a public authority or of

associations and foundations which are not carried out for consideration and which

constitute the main corporate purpose of a taxable person, cannot be considered as

activities made "for purposes other than those of his business" within the meaning of

Article 26.

Therefore, the settled case-law of the CJEU on the mixed use of capital goods and

the option to allocate such assets wholly to the assets used as a taxable person,

which in principle allows the input VAT to be deducted immediately and in full,

cannot be transposed to the scenario submitted by Poland.

Upon invitation by the Chair, the Polish delegation took the floor to thank the

Commission services for the analysis which they fully shared. They further

remarked that whilst a provision in the VAT Directive regarding the issue was

lacking there existed extensive case-law on the matter.

In the ensuing discussions several delegations intervened. Apart from a few

delegations that shared the Commission services' analysis, all others which

intervened advocated room for positive adjustments and pointed to Article 168a of

the VAT Directive and the principle of neutrality. One delegation announced to

transmit written input after the meeting.

The Commission services explained that the introduction of Article 168a had at the

time been meant as a quick fix and that the Article had to be looked at together with

the provisions in Article 26 with the same underlying concept and for which there

exists settled case-law. Delegations were reminded that the principle of neutrality

cannot change existing rules but can only apply to legislation as it stands and they

were in this respect referred to the CJEU's ruling of 15 September 2016 in

Potsdam-

Mittelmark

(case C-400/15).

The Chair concluded that the Commission services would reflect on the follow-up to

be given to the issue considering that in light of the discussions unanimity

a priori

appeared to be excluded when trying to agree guidelines.

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5.9

Origin:

Reference:

Subject:

Commission

Article 211

VAT aspects of centralised clearance for customs upon

importation

(Document taxud.c.1(2017)1561748

–

Working paper No 924)

When introducing the agenda point, the Chair reminded delegations that the

outcome of discussions of a Customs 2020 Project Group held on 13 March 2017

had had to be awaited before the Working paper could be finalised and was made

available to the VAT Committee members on 14 March. Delegations had been

informed in advance of the expected delay that deviated from the normally respected

provisions in the VAT Committee's Rules of Procedure.

The Commission services briefly presented the Working paper. Under centralised

clearance economic operators make customs declarations and pay customs duties in

the supervising Member State. However, import declarations and the payment of

import VAT have to be done in the Member State of presentation. The requirements

regarding data, format and timescale for the submission of import VAT declarations

are not harmonised and vary from one Member State to the other.

As explained in the Working paper, the Customs 2020 Project Group is discussing

the development and deployment of an electronic system, "Centralised Clearance for

Import" (CCI), whose launch is envisaged for 1 October 2020. Technical

specifications will need to be agreed on by the second quarter of 2018. Once in

place, the CCI system will provide for a harmonised and automated information

exchange between national customs offices which should also include a harmonised

solution for the exchange of VAT data providing that only the VAT taxable amount

and the method of VAT payment should be communicated by the supervising

Member State to the participating Member States. This data should be sufficient for

the participating Member States to correctly assess and levy the import VAT due.

The Working paper was prepared 1) to inform the delegations of the state of play of

discussions in that Customs 2020 Project Group with regard to the VAT solution of

the CCI system and obtain their feedback and 2) to invite all delegations to send any

updates or confirmation of correctness of the data concerning their national VAT

payment and collection regimes as mentioned in the Annex to the Working paper to

the Commission services by 30 April 2017.

In the ensuing exchange several delegations asked for the floor, mainly to provide

first information on their national payment methods for import VAT. A number of

delegations took the floor expressly to support the solution proposed as well as the

additional recommendations set out in the Working paper.

Responding to a few specific questions, the Commission services explained the

following: the supervising Member State cannot validate VAT rates of the

participating Member States as all data would be automated and information on the

VAT taxable amount and other information on the goods import (in particular CN

codes) would be sufficient for the participating Member States to correctly assess

and levy import VAT. One delegation commented that the participating Member

State does need to know the VAT taxable amount per VAT rate in order to be able

to levy import VAT and that the supervising Member State does not need to validate

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VAT rates because this information only relates to value added taxation. The

Commission services responded that the participating Member States have to require

a separate import declaration from the importer for VAT purposes (except where

import VAT can be paid in the VAT return as provided for in the second paragraph

of Article 211 of the VAT Directive). Further, they explained that information on

currency exchange rates would already be included in the customs declaration. The

system would concern B2B supplies of big companies and was not meant for small

consignments. With regard to excise duties, it was envisaged to exclude excisable

goods from phase 1 of the project.

The Chair closed the discussions reminding all delegations to send their feedback

regarding the data required by the deadline stipulated.

6.1

ASE LAW

–

SSUES ARISING FROM RECENT JUDGMENTS OF THE COURT OF JUSTICE

OF THE

UROPEAN

NION

Origin:

Commission

Subject:

Recent judgments of the Court of Justice of the European Union

(Document taxud.c.1(2017)1276391– Information paper)

Delegations took note of the Information paper. No delegation took the floor to

request the assessment of a listed judgment.

7.1

NY OTHER

USINESS

Origin:

Subject:

Commission

Informing the VAT Committee of options exercised under

Articles 80, 167a, 199 and 199a of Directive 2006/112/EC

(Document taxud.c.1(2017)1275987

–

Information paper)

The Chair briefly drew delegations' attention to the Information paper regarding

recently notified options exercised under Article 199a, thanked the delegations

concerned and invited all delegations to notify without delay whenever necessary.

Conclusion

The Chair closed the meeting by thanking specifically the interpreters for their much

appreciated contribution to the long meeting.

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ANNEX

LIST OF PARTICIPANTS - LISTE DES PARTICIPANTS - TEILNEHMERLISTE

BELGIQUE/BELGIË/BELGIUM

ЪЛГ РИЯ/BULGARIA

ČESKÁ REPUBLIKA/CZECH REPUBLIC

DANMARK/DENMARK

DEUTSCHLAND/GERMANY

EESTI/ESTONIA

ÉIRE/IRELAND

ΛΛÁ Α/GREECE

ESPAÑA/SPAIN

FRANCE

HRVATSKA/CROATIA

ITALIA/ITALY

KYIIPOΣ/CYPRUS

LATVIJA/LATVIA

LIETUVA/LITHUANIA

LUXEMBOURG

MAGYARORSZÁG/HUNGARY

MALTA

NEDERLAND/NETHERLANDS

15/16

Ministry of Finance

NRA

Ministry of Finance

Ministry of Taxation

Customs and Tax Administration

BMF

Länderbeobachter (Bundesrat)

Ministry of Finance

Permanent Representation

Revenue Commissioners

Permanent Representation

Ministry of Finance

Permanent Representation

Ministry of Finance

Agenzia delle Entrate

Dipartimento delle Finanze

Ministry of Finance

State Revenue Service

Ministry of Finance

AED

Ministry for National Economy

Permanent Representation

Ministry of Finance

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ÖSTERREICH/AUSTRIA

POLSKA/POLAND

PORTUGAL

ROMÂNIA/ROMANIA

SLOVENIJA/SLOVENIA

SLOVENSKO/SLOVAKIA

SUOMI/FINLAND

SVERIGE/SWEDEN

UNITED KINGDOM

EUROPEAN COMMISSION

Ministry of Finance

Permanent Representation

Ministry of Finance

Tax Administration

Ministry of Finance

Tax Agency

HMRC

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