Stakeholders’ activities consist of providing interest-bearing loans to its Spanish shareholder. In that context, it issues bonds on the Luxembourg stock exchange and ‘commercial papers’. In connection with that issuance, the interested party purchased so-called ‘credit rating services’ (the services) from UK-based entrepreneurs: [A] . and [B] (the service providers). The services consist of examining the solvency, liquidity and creditworthiness of the company concerned on the basis of scenarios and risk models. A rating is assigned on that basis. The higher the rating, the less likely it is estimated that debts cannot be repaid by the company in due course. The rating partly determines the willingness of investors to subscribe to the bonds. The service providers base their rating on information they obtain from the entrepreneur, accountants, advisers and other experts. This information is not checked by the service providers; they bear no responsibility for the correctness and completeness of this information.
It is not in dispute between the parties that i) the interested party is an entrepreneur within the meaning of the OB Act, ii) the place of the services provided by the service providers is located in the Netherlands and iii) that VAT is due in respect of the services, this from the interested party is levied using the so-called reverse charge mechanism. The Court will follow the parties in this regard.
The interested party argues on appeal that the services (if necessary with application of the principle of legitimate expectations) fall under the scope of Article 11, paragraph 1, letter i, second, of the OB Act. If the Court rules otherwise, it will invoke the principle of legitimate expectations with reference to what is stated in the banking resolution (decision of the State Secretary for Finance of 9 November 1982, no. 282/15703). The interested party believes that the banking resolution does not only relate to performance by banks, but also to performance to banks. It argues that, since its activities consist of lending, it qualifies as a banking operator, so that it can rely directly on the banking resolution. The phrase contained therein that ‘all services relating to securities and other securities’ fall under the exemption, it derives confidence that the services of the service providers are exempt from VAT
If the interested party cannot be regarded as a bank, it invokes the principle of equality. The banking resolution, she argues, is a generic policy designed to promote a uniform course of action that every taxpayer can rely on. In the banking resolution, the State Secretary gives a very broad explanation of the exemptions from Article 11, paragraph 1, letter i and j of the OB Act. The fact that this broad interpretation by case law of the CJEU may be too broad does not mean that the interested party cannot invoke this interpretation. The court considers in 26 incorrectly that for the application of the Banking Resolution the same explanation must be given to the concept of ‘auditing/accounting investigation’ and ‘due to due diligence’ as the explanation given by the Supreme Court in the judgment of January 10, 2001, no. 34973, ECLI:NL:HR:2001:AA9389, since the subject matter is not concerned with determining the place of employment. According to the interested party, the services of the service providers can be regarded as ‘due diligence, etc. regarding credit’ as mentioned in the appendix to the banking resolution. The court’s opinion that the service relates to the issuance of bonds and not to credit is incomprehensible to the interested party, since a bond loan is credit.
Source: rechtspraak.nl
