Comitetul pentru TVA al UE a publicat Ghidul privind impozitarea TVA a serviciilor de intermediere online. Conform acestora, intermediarii pentru care procesul de aprovizionare este automatizat și nu poate fi furnizat în absența tehnologiei informației, sunt ESS – servicii furnizate electronic. Din această perspectivă, locul de impozitare se schimbă din locul unde se desfășoară serviciile componente (transport, cazare etc.) către locul unde se află clientul neimpozabil. Aceste noi îndrumări pot avea impact asupra agențiile de turism online.
Mai multe informații regăsiți în textul original, în limba engleză, transmis de către ECTAA (Asociația Europeană a Agențiilor de Turism și Turoperatorilor), iar aici puteți descărca noile îndrumări pe această temă.
„As you may know, the VAT Committee brings together the EU Member States and the Commission. It examines questions concerning the application of EU VAT provisions raised by the Commission or a Member State. As a result of the discussion, the VAT Committee may agree guidelines on specific matters, which are not binding.
The VAT Committee has been discussing for a couple of years the VAT treatment of travel agents and more specifically the online supplies made by travel agents to non-taxable persons under different configurations of intermediation. Last year, the VAT Committee considered the specific question whether and under which circumstances online intermediary services could be considered as ‘electronically supplied services’ (ESS) rather than ‘intermediary services’. This determination is important, as it shifts the place of taxation from where the underlying services are supplied to where the non-taxable customer is established.
The minutes of the VAT Committee meeting of last year suggested that there were divergent views among Member States. Some Member States agreed with the Commission’s view that intermediation services should always be taxed where the underlying supply is taxed, as there is a close link, and since the underlying service is not an ESS, neither is the mediation service. Other Member States defended the view that online intermediation services should be considered as ESS, if they fulfil the criteria of ESS. The Commission concluded that they would draft guidelines to make clear what constitutes intermediation and what not.
The Commission published in March 2017 guidelines on the ‘Interaction between electronically supplied services and intermediation services and initial discussion on the scope of the concept of intermediation services when taken in a broader context’ – see enclose copy of guidelines.
In short,
– Intermediation services do not fall under points (t) and (u) of Article 7(3) of VAT Implementing Regulation – the latter exempt most tourism services (transport, accommodation, etc.) from the definition of ESS.
– For online intermediation services, to qualify as an intermediation service, there must be an active involvement of the intermediary, i.e. the supply requires non automated, human, distinct reactions on the side of the intermediary.
– Online platforms such as a marketplace, proving only passive automated services, requiring not more than minimal human intervention and allowing two parties to enter into contact with a view to obtaining separate goods and services, do not qualify as intermediation services and are not covered by Article 46 (i.e. taxed where the underlying transaction is supplied in B2C supplies).
To note, the VAT Directive does not contain a definition of either ‘marketplace’ nor ‘online platform’, but they are used in the VAT Implementing Regulation 1042/2013 and further explained in the Explanatory notes on the EU VAT changes to the place of supply of telecommunications, broadcasting and electronic services. According to the latter, a ‘portal’ is defined as follows: any type of electronic shop, website or similar environment that offers electronic services directly to the consumer without diverting them to another supplier’s website, portal etc. to conclude the transaction. Common examples of this include app stores, electronic marketplaces and websites offering e-services for sale.
According to the new guidelines, online travel agents (OTAs) that meet the criteria of ESS, i.e. making supplies that are essentially automated, involving minimal human intervention and are impossible to be supplied in absence of information technology, will be deemed to make a supply of ESS. This means that the place of taxation shifts from where the underlying services take place (transport, accommodation, etc.) to where the non-taxable customer is located.
This raises a lot of questions, such as:
- Will Member States apply and enforce these new rules (for reminder, the guidelines are non-binding)?
- What are the VAT rules for ESS (how to determine location of non-taxable customer, use of mini one-stop-shop for VAT accounting in other Member States, etc.)?
- What about OTAs that do not act as intermediaries (act in the name and on behalf of another person) but have hybrid models (such as acting in their own name but on behalf of another person or acting in their own name)?
- What about OTA’s that do not invoice a transaction fee to customer but receive commission from the supplier or do both?
- What are the implications for the mediation of international air transport (VAT exempted)? Is there still a link with the underlying service so that the intermediation service can also be VAT exempted?
- What about intermediaries that have online and offline supplies? What is considered as human intervention in an online mediation?
- In/out of scope: Would non-EU OTAs mediating in the supply of travel services to EU customers be subject to EU VAT? Similarly, would EU OTAs selling travel services to non-EU customers be exempt from EU VAT?
This matter will be discussed at the next Fiscal Committee meeting scheduled before the summer break. Further clarification will be sought from the European Commission in that context.„
