On
Context:
Article in the EU VAT Directive
Article 306 of the EU VAT Directive 2006/112/EC.
Article 306 (Special scheme for travel agents)
1. Member States shall apply a special VAT scheme, in accordance with this Chapter, to transactions carried out by travel agents who deal with customers in their own name and use supplies of goods or services provided by other taxable persons, in the provision of travel facilities.
This special scheme shall not apply to travel agents where they act solely as intermediaries and to whom point (c) of the first paragraph of Article 79 applies for the purposes of calculating the taxable amount.
2. For the purposes of this Chapter, tour operators shall be regarded as travel agents.
Facts
- The applicant, which is an active taxable person for the purposes of VAT, operates as a so-called ‘hotel services consolidator’. As part of its economic activity, the company offers the possibility of booking accommodation facilities in hotels and other establishments with a similar function located in the territory of Poland and abroad. Since the company does not have its own accommodation capacity, it purchases accommodation services in its own name and on its own behalf from other taxable persons, which are then resold by the company to its customers. The company’s customers are economic operators. The company does not sell accommodation to so-called ‘retail customers’. Depending on its
customers’ needs and expectations, the company also provides customers with advice on the choice of accommodation and help with travel arrangements. Most often, however, when booking and reselling accommodation services the company does not provide the customer with ancillary services in the form of travel information services or travel advice. In that case, the customer concerned is involved solely in the purchase of accommodation services. The price at which the company resells individual accommodation services includes the cost of purchasing the accommodation service and the company’s profit in the form of a transaction fee for making the booking. - The applicant submitted the following question to the Dyrektor Krajowej Informacji Skarbowej (Director of the National Tax Information Service):
‘Is the resale by the company of accommodation services, not supplemented by ancillary services, purchased beforehand in its own name and on its own behalf from other taxable persons, subject to VAT as a tourist service under the special VAT margin scheme laid down in Article 119 of the Law on the tax on goods and services?’ - In the view of the applicant, the answer to that question should be in the affirmative.
- In an individual interpretation of 27 April 2017, the Director of the National Tax Information Service found that the applicant’s position was incorrect. In the view of that authority, a hotel service including accommodation, and possibly breakfast, does not constitute a tourist service because it does not involve a complex service made up of a number of services.
- The applicant lodged an appeal against the above individual interpretation with the court of first instance, which ruled that the appeal was well founded. In its view, the resale of accommodation services comes within a broader category of tourism services and is therefore taxable under the special VAT margin scheme.
- The tax authority lodged an appeal on a point of law against the above judgment with the referring court [the Naczelny Sąd Administracyjny (Supreme Administrative Court)].
Questions
Must Article 306 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax […] be interpreted as being applicable to a taxable person who is a hotel services consolidator and who purchases accommodation services and resells them to other economic operators, in cases where those transactions are not accompanied by any other ancillary services?
AG Opinion
Decision
Summary
Source
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