PwC. VAT BREAKFAST PwC. 8 February 2018

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2 Contents Welcome and current trends Update from the world 1 2 Swiss VAT developments Impacting case law

3 Welcome and current trends

4 Key topics in focus

5 Timeline & key events Council Regulation(EU) 2017/1939 implementing enhanced cooperation on the establishment of the European Public Prosecutor s Office ( the EPPO ) 20 November 2017 Directive (EU) 2017/ fight against fraud to the Union's financial interests by means of criminal law 18 August 2017 Proposal COM(2017) 706 -measures to strengthen administrative cooperation in the field of value added tax 30 November December 2017 EU Council Brexit progress review October 2018 Target end of divorce negotiations Ratification 30 March 2019 Possible extension upon unanimous agreement by all MS Split payments Italy (April 2017) Transport package in Poland 1 May 2017 ISI Spain 1 July 2017 GST India 1 July 2017 SAF-T Serbia 1 January 2018 VAT in GCC 1 January 2018 Split payments Romania (1 March 2018) Split payments Poland (April 2018) Real time reporting Hungary 1 July 2018 Proposal for a Definitive EU VAT system (Step 1 Quick wins ) Entry into force as of 1 st January 2019 Implementation of Step 1 and Step 2 Proposal for a Definitive EU VAT system (Step 2 Definitive regime ) Entry into force in

6 Tackling the VAT Gap Union s financial interest and criminal law Direct link between collection of VAT and availability to the Union budget, so VAT fraud has an impact on the Union s financial interests Definitions of Union s Financial interests and fraud affecting the Union s financial interests Member States need to criminalize forms of preparation of and participation in such offences Both legal persons as natural persons can be punished Minimum thresholds for sanctions (6 months to 5 year minimum depending on the offence) VAT fraud exceeding 10 mios punishable with max penalty of at least 4 years imprisonment Prescription period at least 5 years Cooperation between Members States and the European Anti Fraud Office Directive (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight against fraud to the Union's financial interests by means of criminal law Entered into force 18 August

7 Tackling the VAT Gap European Public Prosecutor s Office Office with investigation and prosecution functions and legal personality The regulation sets out the structure and general operation of the office Two categories of offences: Category that falls automatically within the competence of the office, and Category which requires to establish competence where there is an indirect link with the first category Essential features of the investigations and prosecution (sources of information, conditions of individual investigation, ) Rules on procedural safeguards and judicial review (reference to EU Charter of Fundamental Rights) Countries: Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Germany, Finland, France, Greece, Lithuania, Luxembourg, Portugal, Romania, Slovakia, Slovenia and Spain Council Regulation(EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor s Office ( the EPPO ) Entered into force 20 November

8 Tackling the VAT Gap Strengthen administrative cooperation Changes effective as from the entry into force: exchange of information between tax authorities without prior request joint tax audits strengthening of Eurofisc cross-border VAT refund disclosure of serious VAT fraud cases to OLAF and European Public Prosecutor's Office (EPPO) updating the conditions for the exchange of information and the Commission's exercise of implementing powers Changes effective as from 1 January 2020: sharing data on customs procedures 42/63 and vehicle registrations with tax authorities Proposal COM(2017) 706 for a Council Regulation amending Regulation (EU) No 904/2010 as regards measures to strengthen administrative cooperation in the field of value added tax Dated 30 November

9 Commission Work Program 2018 An agenda for a more united, stronger and more democratic Europe President Juncker's political priorities A new boost for jobs, growth and investment A connected Digital Single Market A deeper and fairer Internal Market with a strengthened industrial base A deeper and fairer Economic and Monetary Union A balanced and progressive trade policy to harness globalization Work Program priority pending proposals Common Consolidated Corporate Tax Base (CCCTB) Administrative cooperation and combating fraud in the field of VAT Rates of value added tax applied to books, newspapers and periodicals Disclosure of income tax information Automatic exchange of information in the field of taxation 9

10 Update from the world

11 Split payments

12 VAT split payment mechanism What is it? Domestic supplies in B2B transactions traditionally VAT Split payment mechanism Payment of collected VAT to tax authorities by supplier Supplier (MS 1) Tax authorities (MS 1) Invoicing: Net amount + VAT Payment: Net amount + VAT Customer (MS 1) Supplier (MS 1) Invoicing: Net amount + VAT Payment: Net amount Customer (MS 1) Tax authorities (MS 1) Payment of VAT to tax authorities or on dedicated VAT account of the supplier 12

13 VAT split payment mechanism Types of split payment mechanism? Mandatory (taxpayer is obliged to apply the mechanism under sanctions) Voluntary (taxpayer decides whether to apply the mechanism or not) Automatic (taxpayer does one bank transfer which is subsequently divided in a banking system) Manual (taxpayer does two separate bank transfers to different bank accounts of a supplier and tax administration) 13

14 VAT split payment mechanism Effective date Optional 1 October 2017, mandatory 1 January 2018 => postponed to 1 March 2018 and amended Commission Lack of EC consent EC consent obtained Who? What? Romania Romanian VAT-registered, including non resident companies that meet certain criteria B2B taxable supplies (except for transactions subject to special regimes and those subject to the reverse charge mechanism) Obligatory? Mandatory Voluntary Poland 1 January postponed to 1 April 2018, possible further extension to 1 July 2018 Polish VAT-registered, including non resident companies B2B domestic transactions in PLN only Cash or credit card? For payments via cash, card or cash substitutes, suppliers are required to pay the tax amounts into their own VAT accounts within 7 working days as of receipt Only possible for transactions for which payments are made by bank transfers (no cash payment or credit cards payment) 14

15 VAT split payment mechanism Banking side Romania VAT accounts opened by default with the various State treasury units within the tax offices where taxpayers are registered. Taxpayer can opt to open an account with a commercial bank. Suppliers are required to communicate to their beneficiaries information on a dedicated VAT account opened at State treasury units or commercial banks where the beneficiaries shall pay the VAT amounts. If this communication is not properly done, the customer is required to pay the VAT into the supplier s VAT account opened with the State treasury, i.e. these accounts will be included in a list made public on the website of Romanian tax authorities. Poland Two separate accounts : company account + VAT account. Banks will open VAT account to all existing accounts of entrepreneurs. Automatic model when special «transfer notice» is used. 15

16 VAT split payment mechanism Limited use of the funds deposited on the VAT account Sanctions Romania Input VAT payments to suppliers Output VAT payments VAT payments on corrections Payment of VAT sanctions Alternative use of funds deposited on this account will require the approval of the tax authorities. If the errors are not corrected within 7 working days, a penalty of 0.06% per day of VAT value will apply (but for a maximum of 30 days) After a period of 30 days, a fine representing 10% to 50% of the amount of VAT is applicable for acts such as: payment of VAT due to the supplier from an account other than its own VAT account, erroneous VAT payment into an account other than the supplier s VAT account, etc. Poland Mistake in the banking transfer: If a payment is made to a taxpayer other than the taxpayer indicated in the invoice, this taxpayer and the actual supplier will bear joint and several liability for any VAT amount resulting from the invoice and not remitted to the tax authorities. 16

17 VAT split payment mechanism Exemption from the following sanctions Advantages Romania Late payment penalties related to the main VAT obligations outstanding as at 30 September 2017 under certain conditions. Granting of a 5% tax on profit or as the case may be the revenue tax on microenterprises related to the 4th quarter of the fiscal year Poland Increased interest rate for late payment - to the extent that the input VAT amount results from invoices for which 95% have been paid within the split payment mechanism; Additional penalty VAT rates of 30% and 100%. Speeding up the VAT refund (if any): Refund of VAT credit into the dedicated VAT accounts (option) within 25 days as from filing a VAT return (compared to the existing 60 days). Joint and several tax liability cancelled in the following cases: Purchase of certain sensitive goods; VAT fraud in the supply chain. The VAT amount payable will be decreased (based on a statutory formula) if a payment is made from a dedicated VAT account before the statutory deadline (early payment). 17

18 VAT split payment Points of attention Cash flow impact for the supplier - increased the VAT refunds Weakening business relationships (voluntary) Customers decisions impacting supplier s cash flow (voluntary) Limited use of the cash accumulated on the VAT bank account Adaptation of ERP, terms of payment, wording of agreements Banking fees Payment management 18

19 Real time reporting & data analytics

20 Targeted measures to address fraud The Transaction Network Analysis (TNA) As part of the Action Plan on VAT towards a single EU VAT area, the Commission has launched the development of the Transaction Network Analysis (TNA) allowing Member States tax administration to share cross-border VAT information and collect sufficient transactional data to perform analytics, in order to identify and prevent Carousel Fraud. The Commission is currently developing TNA software on a voluntary use by the Member States already in In addition, all Member States should grant Eurofisc officials access to their VIES data on intra-union transactions through TNA; in that way the software can identify all potential fraud networks, including those involving traders established in nonparticipating Member States. Instrument already in use by Belgium and the Netherlands. Most of remaining EU Member States expressed interest and intend to use it. 20

21 Real time reporting latest countries Effective date Scope Spain Serbia 1 July January July 2018 Outgoing and incoming invoices VAT ledger; Investment goods VAT Ledger; and VAT Ledger for certain Intra-EU transactions Investment goods VAT ledger - only needs to be sent once by the end of statutory filing period for the last tax return of calendar year The content and the form of the report are strictly prescribed by the Rulebook. The report connects individual transactions from VAT evidence with the VAT return (very similar to SAF-T requirements) The other important change brought by the new Rulebook is more detailed and comprehensive VAT evidence and records. Hungary Mandatory data prescribed by the VAT Act for invoices that are issued by invoicing software and have a VAT content of at least HUF 100,000 (approx. CHF 360), supplied in a predefined file format 21

22 Real time reporting latest countries Deadline for reporting Spain Within four calendar days (excluding weekends and national holidays) from the date of issue of the invoice Serbia New report must be filed together with the VAT return Hungary Immediately upon invoicing, or within 24 hours at the latest from the date of issue of the invoice Companies involved Applies to taxpayers submitting monthly VAT return Form 303 All VAT registered taxpayers (also foreign established companies) All VAT registered taxpayers (also foreign established companies) 22

23 Where to go with IT investments? 23

24 Transport package in Poland

25 . Transport package in Poland Reminder 1 May 2017 Who? What? What does it mean? Risk? The owner (in case of the transaction within or from Poland) The buyer (in case of intra-community acquisition or importation to Poland) and The carrier must conduct notification and obtain a reference number issued by the Polish customs authority using its customs software valid 10 days Domestic transport (except movements between warehouses) Intra-Community supplies and acquisitions Imports and exports Transit of sensitive goods (i.e. goods such as oil, gas, lubricating oil, contaminated alcohol, some chemicals, tobacco leaves or medicines, etc.) All concerned companies are obliged to implement this new requirement into their process linked to the movement of the goods. Fines may be significant as those can amount up to 46% of the net value of the transported goods (minimum penalty EUR 5k for seller/ buyer/ carrier and EUR 1.2k for the driver). Polish authorities carry out road controls They are empowered to conduct detailed control over the transportation package. Including being authorized to make an official detention of the whole truck with the transported goods, until the situation is cleared. 25

26 Cross Border Rulings (CBR)

27 VAT Cross Border Rulings (CBR) Reminder EU Pilot project What is a CBR? CBR is a pilot project which has been set up to allow taxable persons to obtain advance rulings on the VAT treatment of complex cross-border transactions Participants: Belgium, Denmark, Ireland, Estonia, Spain, France, Italy, Cyprus, Latvia, Lithuania, Malta, Hungary, Netherlands, Portugal, Slovenia, Finland, Sweden and the UK CBR will not have binding power in the remaining EU countries When CBR applies? CBR applies since June 2013 and is now schedule to continue until 30 September 2018 (uncertain if the pilot will be prolonged) Who can request a CBR? Request for a CBR must be submitted by the company in the MS involved in a complex and cross-border transaction where it is VAT registered If more companies are involved in a background transaction, the CBR request should be lodged by one of them, also acting on behalf of the others (no need for multiple rulings per entity) The taxable person lodging a request for CBR must accept that the data provided can be shared with the Tax authorities of the Member State(s) concerned. Is CBR certain? Possibility of not receiving a CBR if the countries cannot reach a consensus CBR will only be delivered under the guarantees applying to national rulings in the Member States concerned (crucial to strategically select the country of application) The CBR may not be given in case the company concerned is being audited When? Who? What? Certainty? VAT Cross Border Rulings 27

28 Brexit

29 Brexit Timeline & key events 29 March 2017 notification EU Council 19 & 20 October 2017 Progress review Decision to start negotiation on future relationship October 2018 Target end of divorce negotiations 30 March 2019 UK Bill Second Round July Fourth Round 25 September Sixth Round 9-10 November Ratification Start negotiations: First Round 19 June Third Round August Fifth Round 9-12 October Seventh Round March 2018? Possible extension upon unanimous agreement by all MS EU Council 14 & 15 December 2017 Progress review Sufficient progress made Strictly private and confidential 29

30 Brexit Sufficient progress Strictly private and confidential 30

31 Brexit Sufficient progress Protection of citizens Northern Ireland s stability and reconciliation Belfast Agreement Financial settlement methodology of calculation Partnership in fight against terrorism & international crime, security, defense, foreign policy Close partnership for trade Nothing is agreed until everything is agreed Strictly private and confidential 31

32 Brexit Points of attention Consideration Less corporate law instruments to reorganise UK business. Cross-border mergers (inbound/outbound) with UK no longer possible under harmonised legal framework of the 10 th Directive. Shareholders and creditor s protection and other rules going forward probably no longer aligned. EU General Data Protection Regulation (GDPR) will apply as of 25 May 2018 with strict regulation of data transfers to non-eea countries Actions Make your corporate structure flexible enough to cope with Brexit. Finalise cross-border mergers before March 2019 (+/- 4-5 months). Transfer seat into EU27 before March 2019 (+/- 3 months). Convert into UK form if you plan to stay. Identify data processing activities in UK (including UK subcontractors). Perform data protection impact assessment (DPIA) for UK data processing activities Post-Brexit, if no adequacy decision in place put appropriate (contractual) safeguards in place e.g. standard contractual clauses; binding corporate rules; etc. 32

33 Brexit Points of attention Consideration Contract becomes uneconomical (e.g. allocation of costs & taxes, new regulatory requirements). Breach of contract due to barriers for moving staff / products. Your customers / suppliers have a right to renegotiate price or are entitled to terminate the contract. Territorial clause for license / noncompete / agency refers to EU as a result of which UK will no longer be covered Contract refers to EU laws. Intellectual property: EU TM no longer valid in UK. UK will not be a party to EU patent. Actions Review all strategic contracts now to determine course of action. Protect yourself against Brexit in case of contract renewal or new contracts: include Brexit clauses, e.g.. MAC and hardship clause (force majeure will not work for Brexit since it has been announced for 2 years). Revisit territory clause / clauses referring to EU laws. Consider fact that UK law may (substantially) change in the future. Consider arbitration clauses to avoid uncertainty regarding choice of jurisdiction clauses. Register UK TMs. 33

34 VAT in Gulf countries

35 Unified GCC VAT framework Reminder The six GCC Member States (Bahrain, Kuwait, Oman, Qatar, Saudi Arabia, UAE) have agreed and ratified during January 2017 the Unified Agreement for the introduction of a VAT system in the GCC. Each Member State will issue its own VAT legislation in accordance with the common principles outlined in the Unified Agreement. Envisaged system is a standard fully-fledged VAT system with VAT applying on most supplies of goods and services with some exemptions /exceptions VAT on goods and services VAT at Import Reverse charge mechanism Standard rate 5% Exports subject to 0% 5 years retention period Possible VAT exemptions Intra- GCC supplies special treatment Deduction of input VAT Periodical filing and reporting Self-assessment system 35

36 Overview UAE KSA Entry into force 1 January 2018 Governance VAT will be governed and administered by Federal Tax Authority (FTA). VAT will be governed and administered by General Authority of Zakat & Tax (GAZT), which was known as Department of Zakat and Income Tax (DZIT) previously. Registration Mandatory Registration Threshold AED 375,000 Voluntary Registration Threshold- AED 187,500 VAT registration is available in the UAE beginning October 2017 Mandatory Registration Threshold SAR 375,000 Voluntary Registration Threshold SAR 187,500 VAT online registration opened to starting 28 August 2017 Issuance of the Tax Invoice Simplified Tax Invoice UAE Law: The Registrant shall issue a Tax Invoice within 14 days as of the date of supply as stated in Article (25) of this Decree-Law. It is expected for a Taxable Person to be able to not provide a Tax Invoice for a supply that does not exceed AED 5 000, unless he has been requested to do so by the Recipient. If he is, he may issue a simplified invoice. KSA Law: A VAT invoice must be issued, at the latest, by the 15 th of the month following the month in which the supply took place. A simplified Tax Invoice may be issued for a supply of goods or services valued at less than SAR A simplified Tax Invoice may not be issued in respect of an internal supply or an export of goods. Self billed invoice Recipient of services/goods agreed to raise a valid Tax invoice on behalf of the supplier. This requires prior agreement and approval from the authorities. 36

37 Tax Invoices Requirements The tax invoices require the following details: On and after 1 January 2018, companies will be required to issue a valid Tax invoice when making any taxable supply of goods or services in the course of its business. The Tax invoice must contain the prescribed particulars in respect of the supply as required by the VAT law. This will also apply to intercompany cross charges. The words Tax invoice (English is acceptable but must also be shown in Arabic) A sequential unique Tax invoice number The date of issue of the invoice The time of supply (tax point), where different from the date of issue of the invoice Supplier s name, address, and VAT registration number Recipient s name and address (there may be requirement to include the recipient VAT registration number) A description of goods/ services supplied For each description, the quantity of goods or the extent of the services, and the rate of VAT and the amount payable, excluding VAT, expressed in the local currency The gross total amount payable, excluding VAT, expressed in the local currency The rate of any cash discount offered The total amount of VAT chargeable, expressed in the local currency The unit price 37

38 Tax Invoices Example UAE 38

39 Tax invoices Example KSA 39

40 GST overview in India

41 Overview of GST: The model Reminder Multiple Indirect Taxes were levied at both Central and State level with limited possibility to set off against each other, leading to tax cascading 1 July 2017 India has implemented a GST model comprising: Central GST ( CGST ) -levied by the Central Government Inter-state transaction are covered under Integrated GST ( IGST ) levied by Central Government State GST ( SGST ) / Union Territory GST ( UTGST ) -levied by the States Government & Union Territory Various State and Central level Indirect Taxes have been subsumed under GST The following legislation governs the levy, collection and administration of GST: Central GST Act, Integrated GST Act, Union territory GST Act, State GST Act, GST (Compensation to States Act), and Central GST Rules Improved cash flow position Simpler and rational tax structure Less tax cascading Improved competitive position of Indian businesses Broader tax base, lower taxes Improved administration (simplicity and lower cost of administration) 41

42 Overview of GST: Key concepts Reminder Taxable event changed to supply Transaction value based valuation Inter-unit supply of services taxed Free of cost transactions between related/distinct parties taxable Taxable event Valuation Arm s length price prescribed for related / distinct party transactions Destination based rules Specific rules -For certain services such as banking, airlines, immovable property, etc. Advance payments now taxable for goods as well Place & time of supply State-wise monthly returns to be filed and maintenance of records All registrations, returns, tax payments, refunds to be filed online Form GSTR1 - Details of outward supplies Form GSTR2- Details of inward supplies and Form GSTR3 - Monthly returns Compliance Framework Classification, Rates & exemptions Credits Input credit mechanism ensures no cascading effect of tax and minimal blockage of funds Credit pool to be maintained State-wise No cross utilization of CGST against SGST and vice versa Classification and rates uniform across States Rate structure: 5%, 12%, 18% & 28%. Services generally taxable at 18% Scope of exemption reduced 42

43 Swiss VAT developments

44 Swiss VAT developments Entry in force of the revised Swiss VAT Act and VAT Ordinance Standard VAT rate: 7.7% Reduced VAT rate: 3.7% VAT registration threshold of 100k based solely on supplies in Switzerland Standard VAT rate: 8% Reduced VAT rate: 3.8% Revision of administrative guidelines by the Swiss Federal Tax Administration Obligation to register in Switzerland for suppliers of small consignments above CHF 100K threshold Main changes Reminder: VAT registration: Threshold of 100K for the mandatory VAT registration in Switzerland is calculated on the basis of the worldwide turnover (i.e. Swiss VAT registration is required even if turnover from supplies in Switzerland is below this amount) ; Reduction of VAT rates: Supplies effected until are still subject to the old VAT rates, even if invoiced in Supplies effected as from are subject to the new VAT rates. Need to maintain correctly the VAT rates in the accounting system and manage special cases (i.e. continuous supplies, etc.) ; E-publications: As from , taxed at 2.5% (super reduced VAT rate) ; VAT exempt supplies without right to deduct: Extended scope of exemptions, especially for public bodies. 44

45 Swiss VAT developments Revision of the administrative guidelines Status update Revised VAT guidelines (new text already adopted) VAT Brochure 2: Taxable persons VAT Brochure 15: VAT declaration & payment of VAT Draft VAT guidelines (finalized) VAT Brochure 9: Input VAT deduction VAT Brochure 4: Taxable supplies o Option to tax o Exempt supplies with right to deduct the VAT o Distance sales VAT Brochure 14: Acquisition VAT VAT Brochure: Public bodies Draft VAT guidelines (in progress) VAT Brochure: Aviation sector VAT Brochure: Taxable persons Related persons VAT Brochure: Electronically supplied services * Most of the VAT Brochures regarding specific sectors of activity are in the process of revision as well. 45

46 Swiss VAT developments Recent experiences from the administrative practice & Swiss case law ) Definition of entrepreneurial vs. non entrepreneurial scope of activity 2) Contributions from public bodies: When is it a subsidy and when consideration for a supply? 3) Consequences on the input VAT recovery right: How to allocate correctly the costs? 04 4) Reduction of input VAT recovery right: Requirement to reduce the input VAT deduction right proportionately to any subsidies received. 46

47 Swiss VAT developments Recent experiences from the administrative practice & Swiss case law VAT status of holding companies: Right to deduct the input VAT costs in relation to the acquisition, holding and disposal of shares recognized by the Swiss VAT legislation (Art. 29, Para. 2 of the Swiss VAT Law). Specific conditions to be fulfilled (intention to hold shares on a long-term basis, quantitative requirements); Correction required with respect to income from VAT exempt without credit activities ; Requirement to report acquisition VAT on services from foreign suppliers: incl. services which can be attributed to the direct and indirect management of participations (e.g. holding entity exercising control of an economic group through a single direct participation, ATF 2C_595/2016). Capital contributions / Consideration for equity rights: Can comprise monetary or in kind contributions ; Exchange of supplies or single operation outside the VAT scope? Varying positions based on the Swiss doctrine and the practice of the Swiss Federal Tax Administration. 47

48 Impacting case law

49 Recent cases from the CJEU Deduction right VAT scope Protection of the taxpayer Customs Paper Consult (C-101/16): Judgment Right to deduct Invoice issued by a taxpayer declared inactive by the tax authorities Risk of tax evasion Volkswagen AG (C-533/16): Judgment Refusal of deduction right Supply taxed under separate invoices Expiry of limitation periods Biosafe (C-8/17): Opinion Right to deduct VAT Limitation of the right to deduct VAT Time period todeduct Geissel and Butin (C-374/16 and C-375/16): Judgment Supplier address not crucial for VAT deduction Entertainment Bulgaria System EOOD (C-507/16): Judgment Right to deduct VAT Output transactions carried out in other Member States Borhringer Ingelheim Pharma GmbH & Co. KG (C-462/16): Judgment Supply of medicinal products by manufacturer to retailers via wholesalers Statutory obligation on manufacturer to provide a discount indexed to sale price Taxable amount Stadion Amsterdam (C-463/16): Judgment Reduced rate of VAT Single supply comprise of two distinct elements Selective application of the reduced rate Enzo Di Maura (C-246/16): Judgment Taxable amount Restriction of the right to reduce the taxable amount in the event of non-payment bythe other party to the contract Aviva (C-605/15): Judgment General principles of law Legal certainty non-retroactivity Menci (C-524/15): Opinion Charter of Fundamental Rights of the European Union Infringement of the principle ne bis in idem Ispas (C-298/16): Judgment Right of defence Access to the administrative file in a national VAT procedure Caterpillar Financial Services sp. z. o.o (C-500/16): Judgment Obstacles to the refund of an overpayment of VAT Rights conferred to individuals Expiry of the limitation period Prequ Italia Srl (C-276/16): Principle of protection of the rights of defence Right to be heard Hamamatsu Photonics Deutschland GmbH (C-529/16): Judgment Determination of the customs value Advance transfer pricing arrangement Strictly private and confidential 49

50 Transfer pricing value vs. customs value CJEU case Hamamatsu Photonics Japan! Hamamatsu Photonics Deutschland GmbH Transaction value Yearly TP adjustment: repayment Import of goods Background Hamamatsu Photonics Deutschland GmbH ( Hamamatsu DE ), a subsidiary of Hamamatsu Photonics Japan ( Hamamatsu JP ) purchased and imported goods into Germany. An Advance Pricing Agreement has been concluded with the German tax authorities under which transactions between Hamamatsu DE and Hamamatsu JP must be at arm s length. At year-end, the initial transfer price is adjusted based on the Residual Profit Split Method. In 2010, year-end TP adjustment resulted in a repayment from Hamamatsu JP to Hamamatsu DE. Hamamatsu DE requested a reassessment of the customs value and repayment of the corresponding import duties (downward adjustment). The reassessment took into account the average import duty rate paid by Hamamatsu DE in relation with the initial customs value. The repayment request was rejected by the German tax authorities based on the argument that such was not allocated by type of goods. Strictly private and confidential 50

51 Transfer pricing value vs. customs value CJEU case Hamamatsu (C-529/16) Issue Can a TP year-end adjustment be used to determine the customs value? Court decision Hierarchy of customs valuation methods: Primary method for customs valuation is the transaction value. Transaction value = Price actually paid or payable for the goods when they are sold for export and adjusted where necessary (Article 70 UCC). Such price includes all payments made or to be made by the buyer to the seller as a condition for the sale of the goods. Adjustment of the import value is limited to specific cases (e.g. quality defects). Adjustment of the transaction value based on year-end TP adjustments is not allowed by the EU Customs Code. Outcome & Consequences Interpretation of this decision by Customs authorities can impact companies which rely on TP methods with retroactive adjustments. How is the customs value to be determined? Customs value should be based on initial TP price of the transaction, while the year-end TP adjustments have to be disregarded ; OR The initial transaction value cannot be used for the determination of the customs value since it is subject to potential retro-active adjustments downwards or upwards. As a result, a secondary method of customs valuation should be used (Article 74 UCC). Potential positive effect for businesses: In the case of upward adjustments, Customs authorities should not reassess the amount of customs duties. Contradiction with the WCO s guidelines which prescribe that TP adjustments occurring after imports should be taken into account for customs valuation purposes. Strictly private and confidential 51

52 Rebates & reduction of taxable amount CJEU case Boehringer (C-462/16) Background Boehringer Manufacturer of pharmaceuticals Reimbursement of the discount Wholesaler Statutory Health Insurance Statutory discount Pharmacy Private Health Insurance Statutory discount Reimbursement of purchases prescription drugs Statutory discount is reduced from the VAT taxable basis Reduction of the statutory discount from the VAT taxable basis not allowed 52

53 Rebates & reduction of taxable amount CJEU case Boehringer (C-462/16) Issue Can a pharmaceutical manufacturer reduce the VAT taxable basis with respect to discounts paid according to statutory provisions to private health insurance companies? EU VAT legislation (Art. 79 and 90, VAT Directive 2006/112/EC) Price discounts and rebates granted to the customer and obtained by him at the time of the supply are excluded from the taxable basis; In the case of cancellation, refusal or total or partial non-payment, or where the price is reduced after the supply takes place, the taxable amount shall be reduced accordingly. Discretionary right of the EU Member States to determine the relevant conditions for the correction of the taxable base. Relevant case-law Elida Gibbs (C-317/94), Ibero Tours (C-300/12), International Bingo Technology (C-377/11) The taxable basis comprises all sums which make up the consideration which has been or is to be obtained by the supplier from the purchaser. When a taxable person who, having no contractual relationship with the final consumer but being the first link in a chain of transactions which ends with the final consumer, grants the consumer a reduction [ ], this reduction should be taken into account for the calculation of the taxable basis. 53

54 Rebates & reduction of taxable amount CJEU case Boehringer (C-462/16) Crucial elements in Boehringer case: Private insurance companies were not part of the supply chain ; No contractual relation between the pharmaceutical manufacturer and the private insurance companies ; Discounts on the price of medical products were imposed by statutory provisions. Court decision Principle of VAT neutrality: Taxable basis should be reduced if, after a transaction is concluded, part or all of the consideration has not been received by the supplier. Price reductions given by a company in the head of the supply chain to the ultimate consumer, even in absence of a contractual link between them can be reduced from the taxable basis (Elida Gibbs, C-317/94). Legal vs. economic reality: Where privately insured persons are reimbursed by their private insurance company for the purchase of medical products, it is the latter who should be regarded as the final consumer of the supply made by a pharmaceutical company. Principle of equal treatment: The different treatment of discounts granted to public health insurers vs. private insurers is not justified. 54

55 Rebates & reduction of taxable amount CJEU case Boehringer (C-462/16) Outcome & Consequences Opportunity for pharmaceutical companies to reclaim the VAT paid in relation to medical products for which mandatory discounts are granted to public and private insurance companies. Statute of limitations to reclaim VAT related to past periods ; Wide differences between EU Member States regarding the systems implemented for public and private insurance and control of prices for medical products. Potential restrictive interpretation: Reduction of taxable basis only where the discount is mandatory based on a statutory provision. Application to other sectors / activities? Swiss approach Art. 41 of the Swiss VAT law: If the consideration paid by the recipient of the supply is subsequently corrected, the taxable basis and the input VAT declared should be adjusted accordingly. The reduction of the taxable basis should be done only if the rebate is directly linked with the supply performed (Tribunal fédéral 2C_928/2010). Swiss VAT legislation is rather based on the economic reality of transactions. It is however uncertain if the Swiss legislator / courts could go as far as to consider a private insurance company as the recipient of the supply of medical products and recognize a direct link between the supplies and the discount received. 55

56 Protection of taxpayer s rights Charter of fundamental rights of the European Union Equality before the law (Art. 20); Right to good administration (Art. 41); Principles of legality and proportionality of criminal offences and penalties (Art. 49); Right not to be tried or punished twice in criminal proceedings for the same criminal offence (Art. 50). Treaty on European Union and the Treaty on the Functioning of the European Union Principle of sincere cooperation: EU Member States have to ensure compliance with EU law and fulfilment of their obligations Principle of equivalence and effectiveness: Domestic procedural law must not make it impossible or excessively difficult to enforce rights derived from EU law. The CJEU refers more and more to these principles in its jurisprudence in the field of indirect taxes. The knowledge and exercise of the taxpayer s rights can significantly impact the outcome of a tax procedure. Taxpayer s rights are applicable in the general context of the exchanges with the tax /customs administration, tax inspection, VAT refund claim, regardless of the procedure is initiated by the taxpayer or the authorities. 56

57 Protection of taxpayer s rights Menci (C-524/15) Offence: Non payment of the VAT due 1 st step - Administrative procedure: Sanction imposed: Payment of the VAT due + penalties Tax authority agreed to pay in instalments and Mr. Menci paid the first instalments 2 nd step - Criminal procedure: Upon completion of the administrative procedure, a criminal procedure has been opened by the public prosecutor Mr. Menci, only shareholder of the sole trading business Menci Combination of administrative and criminal sanctions related to non-payment of VAT Under which conditions does the principle ne bis in idem apply? Ne bis in idem principle: No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he has already been finally acquitted or convicted. Art. 50 of the Charter of Fundamental Rights of the European Union and Art. 4 of Protocol No 7 annexed to the European Convention of Human Rights. According to the CJEU s jurisprudence until now, it is possible to impose successively for the same acts of non compliance with VAT reporting obligations a tax penalty and criminal penalty, in so far as the first penalty is not criminal in nature. Outcome & Consequences As per the Advocate General s Opinion, the ne bis in idem principle can be invoked, if the following conditions are met: Existence of the same material facts; Duplication of criminal proceedings in which a penalty is imposed: If criminal proceedings are commenced or a penalty of a criminal nature is imposed on a person who, in respect of the same act, has previously had a tax penalty imposed which is in fact of criminal nature, then the above principle is infringed. 57

58 Protection of taxpayer s rights Ispas (C-298/16) Mr and Mrs Ispas, property developers Tax inspection New tax assessment No access to the administrative file during the administrative procedure Only invitation to a final discussion before to take their decision Mr and Mrs. Ispas request the nullity of the tax assessments on the grounds that their rights of defence have not been respected. Right to be informed during an administrative tax procedure Art. 41 of the Charter of Fundamental Rights of the European Union: 1. Every person has the right to have his affairs handled impartially, fairly and within a reasonable time [ ]. 2. This right includes: (a). The right of every person to be heard, before any individual measure which would affect him adversely is taken; (b). The right of every person to have access to his file while respecting the legitimate interests or confidentiality; (c). The obligation of the administration to motivate its decisions. Does this principle oblige tax authorities to give access to the taxpayer to their administrative file used during an administrative procedure (e.g. tax audit)? Outcome & Consequences: In a national administrative procedure, an individual should have access, upon request, to the information and documents forming the basis of the administrative decision setting out his VAT obligations. The taxpayer must be aware of his rights to exercise them efficiently: Request access to the administrative file before a decision is rendered by the tax authorities in order to still have time to introduce rebuttal evidences, additional argumentation, etc. Once the decision has been rendered, it is a significant advantage for the claim proceeding to be aware of all the information and documents on which the tax authorities have based their decision since the motivated decision is often not exhaustive. Limitation of the right to be informed: Only if reasons of public interest justify to restrict the access. 58

59 Protection of taxpayer s rights Caterpillar Financial Services (C-500/16) November 2010: According to the Polish Supreme Administrative Court, the taxpayer providing leasing services must include in the taxable amount of these services the related costs of insurance (no VAT exemption applicable) December 2010: Caterpillar issued corrected invoices to the clients (VAT applied on insurance fees) + payment of the corresponding VAT and late interests to the Polish tax administration for the period December 2005 to December 2011 March 2013: Further to the delivery of the judgment BGZ Leasing C- 224/11, Caterpillar requested the refund of the overpayment of VAT previously made. April 2013: Refusal from the Polish tax authorities to refund an overpayment of VAT in relation to the period December 2005 November 2007 for expiry of the limitation period of 5 years. Tax limitation period: An obstacle to the refund of an overpayment of VAT Principles of sincere cooperation, equivalence and effectiveness invoked. Is it possible for the taxpayer to request a refund of overpayment resulting from the collection of VAT in breach of EU law further to the principles of effectiveness, sincere cooperation and equivalence? Outcome & Consequences: Be aware of the statutory limitation period applicable in the country where you are dealing with VAT obligations in order to exercise your rights in due time, i.e. generally 5 calendar years in EU countries. Depending on given country, the exact periods still open for audits could vary. In particular, the regular prescription periods may be extended, if it judged that given circumstances related to tax avoidance prosecution from the EU tax authorities. Alternative actions to ensure the exercise of your rights before the statute of limitations expires: Submit protective claim in order to preserve your right to claim a refund when the contingency is resolved; Temporary payment in order to suspend the potential late interest and penalties for non payment of VAT until the procedure / decision is taken. 59

60 Protection of taxpayer s rights Prequ Italia Srl (C-276/16) Prequ Italia Srl Tax inspection by the customs authorities New tax assessments Prequ Italia Srl has not be heard in order to submit its observations prior to the adoption of the tax assessments by the Italian Customs Authorities The tax assessments issued by the customs authorities, however, indicated: o o Possibility to lodge an appeal; Possibility to obtain suspension of the execution of the tax assessments under some procedural conditions. Prequ Italia invokes an infringement of its rights of defence. Consequences resulting from the lack of prior hearing of the taxpayer before the adoption of a tax assessment: Right to good administration (Art. 41 of the Charter of Fundamental Rights of the European Union). Further to the right to be heard prior to the adoption of a measure, should the tax assessment taken by the customs authorities in violation of that principle be automatically suspended once the taxpayer lodges an appeal? No, the general principle of respect for the rights of the defence does not require the automatic suspension of the contested measures once an administrative appeal is lodged; As long as the national legislation allows the taxpayer to request the suspension of the implementation of that measure until its possible amendment in the frame of an administrative appeal. Outcome & Consequences: Verify whether the tax/customs procedure applicable to your case is in line with the general principle of respect for the rights of the defence. In the course of the tax inspection, be proactive and request to the tax / customs authorities (if possible) a discussion in order to share your observations and additional explanations to the inspector prior the decision is rendered. 60

61 Our team Patricia More Olivier Comment Indirect tax Partner Avenue Giuseppe-Motta Genève T: Indirect tax Director Avenue C.F. Ramuz Lausanne T: Bozena Turek Manager VAT Avenue Giuseppe-Motta Genève T: Konstantina Tsiosta Manager VAT Avenue Giuseppe-Motta Genève T: Strictly private and confidential 61

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