A mobile telephony provider offers subscriptions with separate bundles for telephony, SMS and mobile internet (data bundle). The provider takes the position that it does not owe VAT on the subscription fees, insofar as these are attributable to the data bundles, because there are allegedly untaxed advance payments. The provider argues in this regard that the customers with the data bundle can also donate MBs to a charity via an app, that it is therefore used multiple times and that the performance is therefore insufficiently determined. According to the provider, the VAT is only due when the data bundle is actually used and he requests a refund of the VAT paid on the declaration insofar as this relates to the unused data.
The Gelderland District Court has ruled that the provider enters into a legal relationship with the customer on the basis of which the provider grants the customer the right to use the mobile network for telephony, SMS and data traffic. It is not important here whether the services of the provider are actually used. Donating via the app does not change this legal relationship.
Source BTW jurisprudentie
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