VATupdate

Agenda of the ECJ VAT cases – 5 decisions, 1 AG Opinions expected till April 22, 2021

April 15, 2021

Judgment in C-593/19 SK Telecom

VAT on use or enjoyment of phones in Austria SK Telecom, a mobile phone provider based in South Korea, incurred Austrian VAT on fees charged by an Austrian network operator, and passed them on to its customers (South Koreans visiting Austria) as roaming charges. The Austrian tax authorities rejected SK’s Thirteenth Directive claim on the basis that effective use and enjoyment of its services took place in Austria, and SK should have accounted for Austrian VAT on the roaming charges. In his Opinion AG Henrik Saugmandsgaard Øe states that the roaming service is clearly “used” in Austria, and it was unnecessary to consider whether it was also “enjoyed” there. SK’s roaming charges should have been subject to Austrian VAT.

Previous posts about this case can be found HERE

Judgment in C-846/19 Administration de l’Enregistrement, des Domaines and de la TVA

A Luxembourg referral asking whether, inter alia, the concept of taxable activity within the meaning of the second subparagraph of Article 9(1) of the VAT Directive is to be interpreted as including or excluding supplies of services provided in the context of a ‘triangular relationship’ in which the provider of the services is appointed to provide those services by an entity which is not the same person as the recipient of the supply?

Previous posts about this case can be found HERE

Judgment in C-868/19 Finanzamt für Körperschaften Berlin

A German referral asking whether Article 11 of the VAT Directive is to be interpreted as precluding national legislation which prohibits a partnership (in this case a limited liability partnership, the partners of which, apart from the controlling company, are not exclusively persons financially integrated into the controlling company’s undertaking) from being a ‘controlled company’ and eligible for VAT grouping?

Previous posts about this case can be found HERE

Judgment in C-935/19 Grupa Warzywna

A Polish referral asking whether national law, which allows the application of penalties in the form of an additional tax liability where no tax revenue was lost, as a result of an erroneous understanding of applicable laws, is compatible with the VAT Directive and the principle of proportionality and whether the imposition of such additional liabilities actually serves to prevent tax fraud or is merely an additional fiscal measure?

Previous posts about this case can be found HERE

April 21, 2021

Hearing in C-186/20 Hydina SK

A Slovakian referral asking whether recital 25 of Council Regulation (EU) No 904/2010 of 7 October 2010 on administrative cooperation and combating fraud in the field of VAT, which states that ‘the time limits laid down in this Regulation for the provision of information are to be understood as maximum periods not to be exceeded’, is to be interpreted as meaning that those time limits cannot be exceeded and that exceeding them results in the suspension of a tax audit being unlawful? Does failure to comply with the time limits for implementing the international exchange of information provided for in Council Regulation (EU) No 904/2010 result in consequences for (sanctions against) the requested authority and the requesting authority? Can international exchange of information that does not comply with the time limits laid down in Council Regulation (EU) No 904/2010 be regarded as unlawful interference in the rights of a taxable person?

Previous posts about this case can be found HERE

April 22, 2021

AG Opinion in C-80/20 Wilo Salmson France

A Romanian referral regarding the interpretation of Article 167 of the VAT Directive, read in conjunction with Article 178. Is there a distinction between the moment the right of deduction arises and the moment it is exercised with regard to the way in which the VAT system operates; whether the right to deduct VAT may be exercised where no (valid) tax invoice has been issued for the purchase of goods? Can an application for a refund be made in respect of VAT which became chargeable prior to the ‘refund period’ but which was invoiced during the refund period? What are the effects of the annulment of invoices and the issuing of new invoices? Can national legislation make the refund of VAT conditional on the chargeability of VAT in a situation where a corrected invoice is issued during the application period?

Previous posts about this case can be found HERE

Judgment in C-703/19 Dyrektor Izby Administracji Skarbowej w Katowicach

A Polish referral on whether the activities of the taxpayer can be classified as food-related services, which are taxed at a rate of 8% and not as supplies of prepared dishes, which are taxed at a rate of 5%. At the heart of the dispute is the assessment of the correctness of the tax classification and of the application of the reduced VAT rate to specific products sold by the applicant. These products are intended for immediate consumption by the customers of the restaurant branch. The end product is prepared on site from semi-finished products. The prepared meals and dishes are served hot or cold and can be consumed on site or taken away. The end product is prepared on site from semi-finished products. The prepared meals and dishes are served hot or cold and can be consumed on site or taken away. The end product is prepared on site from semi-finished products. The prepared meals and dishes are served hot or cold and can be consumed on site or taken away.

Previous posts about this case can be found HERE

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