On July 16, 2021, the Supreme Court rendered judgment in case number 19/02639, ECLI:NL:HR:2021:1156.
According to the first paragraph of Article 44 of the VAT Directive 2006, the place of supply of a service performed by an intermediary acting in the name and on behalf of another person is, as a rule, the place where the underlying transaction is carried out in accordance with this Directive.
It is beyond reasonable doubt that “the underlying transaction” in the first paragraph of Article 44 of VAT Directive 2006 includes, in any event, transactions for consideration effected through the intermediary of the person referred to in that provision. In the case of mediation in the conclusion of an employment contract, the underlying act does not consist in the conclusion of that contract, but in the work that the employee will perform for remuneration under that contract. The fact that, in the absence of independence, the employee does not carry out his work in the capacity of a taxable person within the meaning of Article 9 of the 2006 VAT Directive, and therefore the remuneration is not subject to VAT, does not alter this. It follows from paragraph 21 of the Lipjes judgment that, for the purposes of determining the place of supply of services rendered by an intermediary, it is immaterial whether the transaction for the purpose of which the intermediary was engaged is subject to VAT or is a non-taxable transaction. If the intermediary takes part in the creation of a non-taxable transaction, the place of the intermediary service is the place where that transaction would take place for the purposes of charging VAT if it were subject to VAT. To that extent, the rulings of the Court of Justice do not demonstrate an error of law. To that extent the plea fails.
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