Value Added Tax and the Digital Economy. The 2015 EU Rules and Broader Issiies. Edited by. Marie Lamensch Edoardo Traversa Servaas van Thiel

Transcription

1 Value Added Tax and the Digital Economy The 2015 EU Rules and Broader Issiies Edited by Marie Lamensch Edoardo Traversa Servaas van Thiel Wolters Kluwer

2 Contributors Preface v xix CHAPTER 1 VAT on Online Supplies: A Brief Outline of Current Issues Servaas van Thiel The VAT Success-Story The EU VAT Framework for Online Supplies: Neutrality Concerns, Compliance Burdens and Combating Fraud The EU VAT Framework for Online Supplies: Topical Issues Outlook 9 CHAPTER 2 VAT and Taxation of the Digital Economy from the Perspective of the EU Policy Maker Donato Raponi & David O'Sullivan Introduction The First Steps towards the Destination Principle Further Progress: Adoption of the VAT Package in The Successful Introduction of the 2015 Place of Supply Rules and MOSS Legislative Framework Guidance for Member States and Business Explanatory Notes on the Place of Supply Rules MOSS Guidelines Communication 16 xi

3 2.4.4 MOSS IT Implementation Coordination of Audits A Roadmap to a Destination Based VAT System for B2C Transactions Conclusions 20 CHAPTER 3 Value Added Tax 3.0 Chartern Adline Herbain Introduction Across the Ocean The Sixth Directive Outcome versus Intentions In Luxembourg The E-Commerce Directive Outcome versus Intentions In Switzerland VAT Package Outcome versus Intentions A Little Further on, Past the Future 36 CHAPTER 4 Tax Assessment in a Digital Context: A Critical Analysis of the 2015 EU Rules Marie Lamensch Introduction Identifying and Locating Customers of Electronically Supplied Services: A Summary and Critical Analysis of the Current Rules General Customer Identification Customer Location The General Rules of Council Regulation 282/ The Specific Rules of Council Regulation 1042/ General The Presumptions Analysis Intermediate Conclusion and Final Remarks Conclusions 65 xii

4 CHAPTER 5 VAT Fraud and the Digital Economy within the European Union: Risks and Opportunities Edoardo Traversa & Emanuele Ceci Introduction The Fight against Fraud as a Focal Point of EU Digital VAT Policy Identifying and Locating Digital Supplies in Order to Minimize VAT Fraud: The Destination Principle as a Panacea? An Internationally Recognized and Implemented Principle Obstacles to Implementing the Destination Principle in a Borderless Economy Excessive Compliance Costs for Tax Administrations and Taxable Persons Excessive Bürden of Proof for Suppliers The Limits of the Proposed Solutions The Presumptions regarding the Place of Supply of E-Services in Regulation 1042/2013/EU The OECD Guidelines Fighting VAT Fraud in the Area of Digital Supplies: The Need for Comprehensive and Innovative Solutions Using Information Technology to Better Trace and Identify VAT Taxable Persons and Transactions Enhancing Administrative Cooperation and Developing Simple Mechanisms for the Assessment and Collection of VAT on Cross-Border Transactions 85 CHAPTER 6 The VAT One Stop Shop System: An Efficient Way to Collect VAT on Digital Supplies into the EU Consumer Market? Ine Lejeune & Sophie Ciaessens Introduction: VAT Compliance and Collection in a World in Beta The VAT MOSS System Explained What Is the VAT MOSS System? Who Can Use It? Union versus Non-union VAT MOSS Schemes Key Features of the EU VAT MOSS First Six Months of the EU 2015 VAT MOSS Go-Live VAT MOSS Registration Numbers VAT MOSS Redistribution of Revenues National Contact Points 99 xiii

5 6.4 Auditing under MOSS MOSS Records Audit Code of Practice Standard Audit File for MOSS ('SAF-MOSS') Issues That Are Likely to Be Examined during a MOSS Audit Penalties and Statute of Limitations Summary Conclusions: Is the VAT MOSS the Start of Something Big? What Works? What Not? What Should Be Reviewed for the Future? What Is Next? 104 CHAPTER 7 Internet and the Concept of 'Fixed Establishment' of the Recipient of a Supply of Services: Case C-605/12 Welmory Ben Terra Introduction Opinion of the Advocate General Case Law regarding Fixed Establishments Implementing Regulation Outsourced Personnel, Permanence and Identical Use The Sale of Bids Third Party Payment Decision by the Court Preliminary Observation, Subject Matter of the Question The Relevance of Previous Case Law The Primary Point of Reference The Concept of Fixed Establishment Conclusions 114 CHAPTER 8 Internet Search Engines: A VAT Analysis Cristina Trenta Introduction The Economics of Internet Searching Advertising Defining Advertising Banner Advertisement The Economic Role of Users A VAT Perspective on the Role of Users Conclusions Further Research 131 xiv

6 CHAPTER 9 VAT and Virtual Reality: How Should Cryptocurrencies Be Treated for VAT Purposes? Oskar Henkow Introduction The Virtual Reality and VAT Treatment of Money, Debts and Vouchers in EU VAT Virtual Currencies and Their VAT Treatment 145 CHAPTER 10 Consumption Taxation of Cloud Computing: Lessons from the US Subnational Retail Sales Tax Experience Walter Hellerstein Introduction and Preliminary Caveats What Is Cloud Computing? Lessons from the US RST Experience: The Dangers of 'Reasoning by Analogy' in Designing Consumption Tax Regimes for Cloud Computing Introductory Note: The Role of 'Use' Taxes in the US RST Regimes Jurisdiction over the Parties to a Cloud Computing Transaction Purchaser's Nexus Provider's Nexus State Guidance The US RSTs' Approach to the Taxability of Cloud Computing Transactions 'Sale' or 'Use' Tangible Personal Property, Service, or Intangible? Distinguishing between Sales of Tangible Personal Property and Sales of Services in the Cloud Computing Context Cloud Computing as Canned/Prewritten Computer Software Cloud Computing as Tangible Personal Property (without Regard to Whether It Constitutes Canned/Prewritten Computer Software) Cloud Computing as a Service In What State Does the 'Sale' or 'Use' Occur? Location of the Server Location of the User Concluding Observations 166 xv

7 CHAPTER 11 Methodological Notes on a Changing Legislative Landscape Pernilla Rendahl Introduction International Coordination by Soft Law Specific Demands in the Context of Electronic Commerce Theoretical Comparison of Two Soft Law Tools The EU Explanatory Notes on Digital Supplies International VAT/GST Guidelines Interpretation and Application by Authorities and Courts Closing Remarks 179 Appendices 181 APPENDIX I Council Directive 2002/38/EC of 7 May 2002 Amending and Amending Temporarily Directive 77/388/EEC as Regards the Value Added Tax Arrangements Applicable to Radio and Television Broadcasting Services and Certain Electronically Supplied Services, O.J. 15 May 2002, L APPENDIX II Council Directive 2008/8/EC of 12 February 2008 Amending Directive 2006/112/EC as Regards the Place of Supply of Services, O.J. 20 February 2008,L 44/ APPENDIX III Council Implementing Regulation (EU) No 282/2011 of 15 March 2011 Laying Down Implementing Measures for Directive 2006/112/EC on the Common System of Value Added Tax (Recast), O.J. 23 March 2011, L77/1 (Recast of Council Regulation (EC) No 1777/2005 of 17 October 2005 Laying Down Implementing Measures for Directive 77/388/EEC on the Common System of Value Added Tax) 203 APPENDIX IV Council Implementing Regulation (EU) No 1042/2013 of 7 October 2013 Amending Implementing Regulation (EU) No 282/2011 as Regards the Place of Supply of Services, O.J. 26 October 2013, L284/1 213 APPENDIX V Explanatory Notes on the EU VAT Changes to the Place of Supply of Telecommunications, Broadcasting and Electronic Services That Enter into Force in 2015 (Council Regulation 1042/2013) 219 xvt

8 APPENDIX VI Council Regulation 967/2012 of 9 October 2012 Amending Implementing Regulation (EU) No 282/2011 as Regards the Special Schemes for Non-established Taxable Persons Supplying Telecommunications Services, Broadcasting Services or Electronic Services to Non-taxable Persons 221 APPENDIX VII European Commission - Tax Administration and Fight against Tax Fraud: Information for Businesses Signing Up for the MOSS: Additional Guidelines on Auditing under the MOSS 235 Bibliography 237 Table of Cases 243 Index 245 xvii