Unofficial translation
For the classification of the sale of a meal as a delivery or service, the customer’s decision is important (judgments of the Supreme Administrative Court of 30 July 2021, reference number I FSK 1290/18, I FSK 1678/18, I FSK 1461/18, I FSK 1749/18, I FSK 1516/18, I FSK 1649-1618)
The dispute in these cases concerned the sale of meals by fast-food restaurants and the determination, against the background of the legal status before the new matrix of VAT rates came into force (i.e. before July 1, 2020), when such transactions should be treated as supplies subject to VAT in the amount of 5%, and when providing food-related services, taxed at 8% VAT.
These decisions were issued after the judgment of the CJEU, which ruled in April this year in the case initiated by a complaint of a franchisee of a chain of fast-food restaurants, offering meals, among others. Takeaway. According to the CJEU ruling, if the customer decides to take the purchased takeaway, it should be considered that the taxpayer supplies them with goods, which may be subject to a reduced VAT rate of 5%. However, if the customer decides to use the infrastructure provided by the taxpayer that allows the consumption of meals on the spot (e.g. waiter service, table, chair, cutlery, toilet, cloakroom and other amenities) – then it should be considered that we are dealing with the provision of a service, taxed at the VAT rate of 8%.
In the oral justification, the Supreme Administrative Court, based on the above guidelines from the CJEU, pointed out that in the case under consideration, the statistical classification of the product or the method of its packaging were not significant in order to determine the correct VAT rate. He confirmed that significant importance should be attached to the decision made by the client. If he decided to buy a take-out meal, it should be considered that we are dealing with a delivery of a ready-made dish, taxed according to the VAT rate of 5%. If, on the other hand, the customer has used services supporting the delivery of meals – then the VAT rate of 8%, appropriate for the service, should apply.
Source Deloitte
