Table of Contents. Part One VAT. Value Added Tax Effects within Business Restructuring 3 Manuel Tron

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1 Preface Introduction xvii xix Part One VAT Value Added Tax Effects within Business Restructuring 3 Manuel Tron 1. Introduction 3 2. Preliminary considerations 3 3. VAT and other indirect taxation 4 4. Sale of goods by non-residents without a permanent establishment in Mexico 5 5. Formal obligations: Issuance of invoices for the sale of goods in the country 6 6. Formal obligations: Filing of tax returns for the payment of VAT 8 7. Formal obligations: Registering for tax purposes before the Federal Taxpayer Registry 9 8. Crediting of VAT paid The right to a refund of the favourable balance of VAT 11 About VAT Registration and Fixed or Permanent Establishments 13 Jos Beerepoot 1. Introduction European Union The fixed establishment for VAT in the European Union A fixed establishment for VAT in non-eu countries The relevance of a VAT registration for corporate income tax Conclusion 20 v

2 The Fixed Establishment after the VAT Package 23 Walter de Wit 1. Introduction Fixed establishment in the Recast VAT Directive Case law on fixed establishment Force of attraction Fixed establishment in the Council Implementing Regulation 282/ The supply side fixed establishment The purchase side fixed establishment Can the Council Implementing Regulation amend the Recast VAT Directive? Conclusion 32 The Allocation of Taxing Rights to Fixed Establishments in European VAT Legislation 35 Gert-Jan van Norden 1. Introduction The fixed establishment concept at a conceptual level The fixed establishment concept in EU VAT legislation and ECJ case law From a conceptual level to EU VAT legislation The fixed establishment concept Allocation of services Supplies from fixed establishments Allocation of services Supplies to fixed establishments The new place of supply rules Place of supply of services VAT liability The 2011 EU VAT Regulation Implementing provisions Fixed establishment Supply of (B2C) services Fixed establishment Recipient of (B2B) services Fixed establishment VAT liability Closing remarks 49 vi

3 European VAT and Tax Treaties 51 Guglielmo Maisto 1. Foreword: The scope of application of Double Taxation Conventions and its exceptions Articles of the OECD MC that may play a role in the VAT field Non-discrimination (Art. 24 OECD MC) Exchange of information (Art. 26 OECD MC) Assistance in collection of taxes (Art. 27 OECD MC) Mutual agreement procedure (Art. 25 OECD MC) Conclusions 60 What Is a Contract under which Commission Is Payable? 63 John F. Avery Jones The Criminal Element in Intra-Community Trade 69 Mariken van Hilten 1. Introduction The ICT system Fraudulent dealings: Hiccups in the system Fraudsters vs those acting in good faith The loss of VAT revenue as a crucial element for diverging from the system Shaky reasoning A levy there should be, be it in the right Member State or not VAT and punishment Misuse and disuse: Legal certainty Territoriality The upshot 79 The Principle of Proportionality and the Prevention of Fraud in VAT 81 María Teresa Soler Roch 1. Preliminary The relevant jurisprudence The doctrine of the European Court of Justice 82 vii

4 2.2. The doctrine of the European Court of Human Rights Final remarks 88 Is a Generalized Reverse Charge Mechanism the Obvious Remedy against VAT Fraud? 91 Stan Beelen 1. Introduction History Combating fraud and reverse charge mechanism Conclusion 100 Financial Services and VAT 101 Ruud Zuidgeest 1. Introduction Insurance Granting of credit Payment transactions Outsourcing Conclusion 109 Treatment of Financial Services under a VAT System: The EU Approach 111 Ted Braakman 1. Introduction Purpose of the Proposal The Proposal and the insurance sector The Proposal and the banking sector The Proposal and asset management services Conclusions 123 Society s Online Revolution and the Short Arms of the Tax Authorities 125 Herman van Kesteren 1. Introduction 125 viii

5 2. Increase in online sales (home shopping) Cross-border online shopping VAT rules and the Internet Short arms Conclusion 135 The VAT Treatment of Subsidies An Evergreen Debate 137 Bruno Peeters and Danny Stas 1. Introduction Status questionis General remarks Consideration for a supply Taxable amount VAT deduction Pending issues Public bodies VAT savings by granting operating subsidies Universities Research Privately financed grants Conclusion 146 VAT and Horses 149 René van der Paardt 1. Introduction Reduced VAT rate for horses A second-hand horse To create a new horse Livery services Flat-rate scheme for farmers Conclusion 156 In Essence, a New Construction 159 Bart van Zadelhoff ix

6 Part Two VAT in an EU and International Perspective Fiscal Outlook in Europe 165 Leo Stevens 1. Start of European Fiscal Studies Disappearing sovereignty Subsidiarity rule as a countercurrent Capital export neutrality or capital input neutrality? European corporation tax as a prospect for the future A European corporation tax for European companies Common Consolidated Corporate Tax Base Compromise solution 174 The Safeguarding of Legal Rights in Tax Matters 177 Dick Schonis BES 183 Mart van de Ven 1. Introduction Brief summary Constitutional innovation BES Tax Act Immovable property tax and dividend tax: Alternative profit tax? Fictive place of establishment for companies General Spending Tax BES Customs and Excise Act/Import duty The BES tax legislation: An evaluation and analysis 192 Own Resources for the European Union? 195 Sjaak Jansen 1. Introduction Brief look at history Current position Why EU taxation? 201 x

7 4.1. General European Commission s arguments Position of the European Parliament Europe for Growth Concluding remarks 204 The Gold Mine of Netherlands Consumption Taxes in Two Historical International Treatises 207 Onno Ydema 1. Should income be taxed? Increasing revenue Ability to pay Positive tax compensation Voluntary payments Effects Consumption taxes as a choice of public policy Conclusion 219 EU Boundaries to Dutch Tax Incentives for Green Investments 221 Alexander Bosman and Ton Stevens 1. Introduction Relevant ECJ case law Jobra case Tankreederei case Brief description of Dutch tax incentives for green investments EIA MIA VAMIL EU compatibility of Dutch tax incentives EIA/MIA Exclusion of assets used in a PE Exclusion of assets in case of Holland routing Notification procedure EIA/MIA VAMIL Conclusions 230 xi

8 Anti-Abuse in the Field of Taxation: Is There One Overall Concept? 233 Ben Kiekebeld A Bank Tax as an Alternative to Banks VAT Exemption? 241 Peter Kavelaars 1. Introduction Ratio Financial Transaction Tax FTT FTT Financial Activities Tax Some additional considerations Final remarks 251 Charter of Fundamental Rights, Tax and the Effects of the Sopropé Judgment 253 Henk van Arendonk 1. Introduction Charter of Fundamental Rights Charter of Fundamental Rights vs ECHR and the national constitutional systems ECJ s ruling in Sopropé General First preliminary question Second preliminary question Effects on national systems of law Scope of the Sopropé judgment for the tax world Conclusions 268 Implementation of VAT Directives 271 Jan Kees Bartel 1. Introduction Implementation VAT Directives Advising the Council of State 273 xii

9 5. One-for-one alignment Counterforces Closing remarks 279 VAT Aspects of the Importation of Electronic Services 281 Fabiola Annacondia 1. Introduction Electronically supplied services VAT treatment of electronic services in the EU Definition of electronically supplied services Taxation of electronic services Electronic services supplied to EU businesses (B2B) Electronic services supplied to final consumers (B2C) Administrative obligations Electronic services supplied to EU businesses (B2B) Electronic services supplied to final consumers (B2C) VAT treatment of electronic services outside the EU Definition of electronically supplied services Taxation of imported electronic services Electronic services imported by businesses Electronic services imported by final consumers Administrative obligations Electronic services imported by businesses Electronic services imported by final consumers Conclusion 293 Value Added Tax and State Aid Law in the EU 295 Ben Terra 1. Introduction Indirect tax provisions Distortions as a result of public measures imposing a burden vs as a result of State aid 299 xiii

10 4. Aids granted by states Four criteria Intervention by the state or through state resources Intervention must be liable to affect trade between Member States Advantage on the recipient Selectivity Distort or threaten to distort competition Conclusion 316 Permanent Establishment: Relative Permanence 319 Jan de Goede 1. Introduction Background and some fundamental issues Interpretation of PE in the OECD Commentaries At the disposal? Single place or multiple places? Permanence Subcontracting Several other points PE in EU direct tax law and VAT Changing the text of the provision? Conclusions 329 Art. 24 OECD Model Convention, Residence and VAT 331 Michael Lang 1. Significance for VAT of Art. 24(6) OECD Model Convention Significance for VAT of Art. 4(1) OECD Model Significance for income taxes of Art. 4(1) OECD Model 334 Taxing Drinking and Smoking in Europe 339 Frans Vanistendael 1. Introduction Excises on manufactured tobacco Situation in Situation in 2011: Deceptive harmonization of tax burdens 340 xiv

11 2.3. The real unharmonized picture The importance of price differences The importance of specific excises Four different markets for cigarettes Disparity in cigarillos Excises on alcohol The situation in : The excises on beer : The excises on wine Protection of the domestic product? : Excises on ethyl alcohol Conclusion: Excises in crisis and still a long way to go The concept of excise in the internal market The challenge of the abolition of border controls The challenge of tax and price differentials The challenge of market organization 352 Annexes 355 Annex 1 Excise structure Cigarettes 355 Annex 2 Cigarettes Excise yield 356 Annex 3 Alcoholic beverages, beer, excise in /hl 357 Annex 4 Still wine excise duty per hl 358 Annex 5 Sparkling wine excise duty per hl 359 Annex 6 Ethyl alcohol excise duty per hl 360 xv