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Constable VAT Focus 10 January 2019

Generated on 10th January 2019

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CASE REVIEW

 

CJEU

 

1. Special Scheme for Travel Agents

This case concerned the supply of holiday residences rented by Alpenchalets Resorts GmbH (Alpenchalets) and subsequently let in its own name to private customers as holiday rentals. Alongside the supply of holiday rental property, Alpenchalets also provided cleaning services and, in some cases, a laundry and “bread roll” service.

Alpenchalets calculated its VAT liability on the basis of profit margin as permitted by the special scheme for travel agents. In 2013 Alpenchaltes wrote to the German tax authorities requesting that it be allowed to apply the reduced rate of VAT (7%). This permission was refused so Alpenchalets brought proceedings before the German Courts which referred the issue to the CJEU for a ruling on whether the supply of a service which is essentially holiday accommodation is subject to the special margin scheme for travel agents and, if so, if that supply could also be liable to the reduced rate of German VAT.

The first question asked whether the activity of supplying holiday accommodation, alongside ancillary services such as cleaning, could still benefit from the special margin scheme where the agent (Alpenchalets) provided its own services as well as the accommodation bought in from third parties. The Court considered that as the mere supply of accommodation by an agent is covered by the scheme, the ancillary services do not have a bearing on the scheme’s applicability to the supply.

With regard to the second question, The Court found that single services provided by travel agents are not described within the legislation allowing certain supplies the reduced rate of VAT. The supplies made by Alpenchalets were subject to the standard rate of VAT.

Constable Comment:  This case confirms that under EU law, the supply of holiday accommodation on its own is capable of being caught by the Tour Operators Margin Scheme; it is not necessary for other supplies alongside the accommodation. The Tour Operators Margin Scheme is simple in theory but can often cause problems when it comes to practical application. If you are, or think you may be entitled to be, operating a margin scheme then it is prudent to seek professional advice to ensure compliance.

 

2. The VAT Liability of Royalties

This case concerned the VAT liability of royalties payable to an author of an original work of art on the basis of the resale right.

The European Commission contended that royalty payments should not be liable to VAT as they are not payment in exchange for goods or services. The State of Austria sought to argue that such payments should be liable to VAT on the basis that just because the author of a work of art does not take part in the agreement between the buyer and seller of the art, does not preclude taxation of that payment.

In essence, Austria argued that the payment was in exchange for goods or services; the author has created a work of art and has profited from its supply thus establishing a direct link between service supplied and the value given in return.

The Court considered that a supply of goods or services is made for consideration only if there is a legal relationship between the supplier and the customer, in the context of which there is reciprocal performance; the remuneration received by the supplier constituting the value actually given in return for the goods or services supplied. Whilst The State of Austria contended that the royalty payable constituted consideration for an exchange of services giving rise to a legal relationship.

In concluding, the Court ruled that a legal relationship arises only between the buyer and seller of a piece of art, if the sale is a resale then the only legal relationship created is between the supplier and the customer; the artist is not a party to this relationship. Therefore there should be no VAT payable on royalty sums received.

Constable Comment: Giving consideration to some of the fundamentals of the VAT system and contract law was helpful in this case. This case is useful as a demonstration of how the European Commission can seek to enforce a uniform interpretation of the VAT law.

 

Upper Tribunal

 

3. Exemption for Management of Special Investment Funds

This appeal by Blackrock concerned the VAT exemption for the supply of management services which relate to special investment funds (SIFs) and whether a single supply of management services to Blackrock could be apportioned between SIF and non-SIF to reflect that exemption.

The Tribunal gave consideration to whether the supply to the SIFs could be seen as one of management services, asserting that it would only be possible to consider apportionment if there was anything to be apportioned: the European exemption applies specifically to management of SIFs, not merely a supply of services to a SIF. Relying on a rich tapestry of case law, the Tribunal concluded that the services supplied to Blackrock were management services and were therefore capable of exemption.

Having decided that the supplies were capable of benefiting from the exemption, the Tribunal turned to the question of whether the single supply to Blackrock was capable of being apportioned in line with its use by Blackrock as relating to SIFs and non-SIFs; non-SIF management being a taxable supply. Blackrock sought to argue that, in order to give effect to the exemption from which the supplies benefited it was necessary to allow apportionment of the supply. This argument had been rejected by the FTT on the ground that if apportionment were to be allowed then a precedent could be set allowing apportionment in relation to other composite supplies where the ancillary element is exempt.

After a length consideration of case law and relevant EU legislation, The Tribunal concluded that it is equally arguable that apportionment of the services should be allowed and that it should not, no conclusion was reached on this topic. The Tribunal stayed the appeal in order to seek guidance from the CJEU.

Constable Comment: This case gave a long and considered analysis of what can and cannot be regarded as management services for the purpose of the exemption in question. Whilst a conclusion was not reached around the apportionment issue, the clarification offered by the considerations given in regard to the first question is no doubt of use to any business supplying management services and seeking to benefit from the exemption. We await a CJEU decision on whether or not apportionment of these supplies is acceptable.


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This email is intended as a general guide to current VAT issues and is not intended to be a comprehensive statement of the law. No liability is accepted for the opinions it contains or for any errors or omissions.

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