VATupdate

Share this post on

Flashback on ECJ Cases – C-555/15 (Gabarel) – Order – A a physiotherapist who applies indistinct or complementary therapies specific to either physiotherapy or osteopathy is exempted from VAT

On April 14, 2016, the ECJ issued its decision (order) in the case C-555/15 (Gabarel).

Context: Reference for a preliminary ruling – Value added tax (VAT) – Directive 2006/112 / EC – Exemptions – Personal care services within the framework of medical and paramedical professions – Physiotherapy – Osteopathy


Article in the EU VAT Directive

Article 132(1)(c) in the EU VAT Directive 2006/112/EC

Article 132
1. Member States shall exempt the following transactions:
(c) the provision of medical care in the exercise of the medical and paramedical professions as defined by the Member State concerned;


Facts

  • Mr Gabarel obtained a physiotherapy diploma from the Rennes school (France), with a specialization in osteopathy, by virtue of which he is authorized to practice the profession of osteopath on French territory.
  • From 1986, Mr Gabarel practiced the profession of physiotherapist in Portugal. He was registered there, as a natural person, with the General Tax Directorate, for VAT purposes, for the exercise of the activity entitled “other paramedical technicians – income tax code of natural persons 5019 ”.
  • On 6 November 2007, the tax administration asked Mr Gabarel to identify, in an objective manner, the services provided, on the basis of the declaration of the start of activity under code 5019 of the French tax code. the income of natural persons.
  • On November 28, 2007, Mr Gabarel replied that he exercised the activity of “osteopathic doctor”. On December 5, 2007, he indicated that, “[i] nstead and place of the document presented on November 28, 2007, I inform you of the fact that the activity exercised is not that of osteopathic doctor, but that of physiotherapist”.
  • Considering that his activities were exempt from VAT, Mr Gabarel did not liquidate the VAT on his active transactions and neither did he deduct the VAT paid in the context of the acquisition of goods and services.
  • On October 30, 2012, the Inspecção Tributária da Direcção de Finanças de Santarém (tax inspectorate of the Santarém finance department, hereinafter “the tax inspectorate”) opened, with regard to Mr Gabarel, an internal control relating to the 2008 financial year, in respect of VAT, within the framework of which missing VAT receipts amounting to 12,405.25 euros were noted.
  • Following an external audit procedure for personal income tax for 2008, the tax inspectorate concluded that Mr Gabarel, in respect of the activity of ‘other technicians paramedics ”, while he has a physiotherapist diploma, was in fact exercising the profession of osteopath, as evidenced by the receipts that he issued during the year 2008. On October 6, 2008, he would have drawn up a document entitled “receipt n ° 0845951”, for an amount of 65 euros, under which the activity carried out is a “consultation in osteopathy”.
  • In the opinion of the tax inspectorate, osteopathy is not a paramedical profession, so that it does not fall under the exemptions provided for and that the provision of osteopathic services is subject to the standard rate of VAT .
  • Mr Gabarel argued that, in France, the profession of osteopathic doctor has always been confused with that of physiotherapist. The functional proximity of these two professions would have led him to declare himself, at first, as an osteopathic doctor when the tax inspectorate questioned him about the type of activity exercised and its content. Having taken note of the tax implications of the distinction made in Portugal between physiotherapy and osteopathy, he corrected this declaration by producing his physiotherapy diploma.
  • On December 18, 2012, the Autoridade Tributária e Aduaneira (Tax and Customs Authority) nevertheless issued VAT reminder notices in the name of Mr. Gabarel and relating to the year 2008, for a total amount of 14,483 , 76 euros. It noted that the latter applied, in the context of the treatments provided to his patients, physiotherapy therapies and techniques as well as osteopathic therapies and techniques.

Questions

Must a taxable person who is authorised under national law to practise a paramedical activity, namely physiotherapy, but who in the context of his professional health activity uses either indistinctly or complementarily both therapies characteristic of physiotherapy and therapies characteristic of osteopathy be regarded, for the purposes of Article 132(1)(c) of Council Directive 2006/112/EC and, consequently, for the purposes of Article 9 of the CIVA [(Code on VAT)], as a professional who, overall, carries out a paramedical activity which is, accordingly, exempt from VAT?


AG Opinion

None


Decision (Order)

Article 132(1)(c) of Council Directive 2006/112 / EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that a physiotherapist who , as part of his professional health activity, applies indistinct or complementary therapies specific to either physiotherapy or osteopathy, must be exempt from value added tax not only for the first therapies , but also under the latter, if the exclusion of the latter from the exercise of paramedical professions for the purposes of exemption from value added tax exceeds the limits of the discretion granted to the Member States by this provision.


Summary


Source:


Similar ECJ cases


Reference to the Case in the EU Member States


Newsletters

Sponsors:

VAT news
VAT news

Advertisements:

  • AXWAY - VATupdate Banner
  • vatcomsult
  • VATupdate.com