issue 3/2014 of Indirect Tax News.
This newsletter informs readers about issues of practical importance in the field of VAT and similar indirect taxes, such as GST. Experts from all over the world provide first-hand information on recent developments in legislation, jurisdiction and tax authorities’ opinions and Directives.
7.pdf This presentation captures many uses and the significance of the number...
Indirect Tax News_issue 3 September 2014
1. CONTENTS
▶▶BELGIUM
Warehousing services: Belgium brings
its interpretation in line with the
EU implementing regulation 1
▶▶EDITOR’S LETTER 2
▶▶ECUADOR
Value Added Tax (VAT) on import of
services 2
▶▶IRELAND
Adjustment of tax deductible in relation
to unpaid consideration 3
▶▶ISRAEL
Israeli and U.S. Customs authorities sign
AEO mutual recognition agreement 3
▶▶LATVIA
Recommendations for the assessment
of counterparty and transaction risks 3
▶▶ROMANIA
European Court of Justice ruling on
Romanian authorities’ treatment of
financial leases on termination of lease 4
▶▶SPAIN
Bill amending Spain’s VAT law 4
▶▶UGANDA
The legality of the imposition of
domestic VAT on imports of goods
into Uganda challenged 5
ECUADOR
VAT on import of services
READ MORE 2
ISRAEL
Israeli and U.S. customs authorities sign
AEO mutual recognition agreement
READ MORE 3
SEPTEMBER 2014 ISSUE 3
WWW.BDOINTERNATIONAL.COM
INDIRECT TAX NEWS
BELGIUM
WAREHOUSING SERVICES: BELGIUM BRINGS ITS INTERPRETATION IN LINE
WITH THE EU IMPLEMENTING REGULATION
With effect from 1 June 2014, the Belgian tax
authorities have changed the place of supply
rules, and hence the liability to Belgian VAT, for
the provision of warehousing facilities.
When the EU’s place of supply rules
were rewritten in 2010, the Belgian
VAT authorities initially considered
warehousing services to be services connected
with immovable property, as referred to in
article 47 of Directive 2006/112/EC.
However, as this point of view was not in line
with some of the other EU Member States, it
was temporarily allowed to apply the general
B2B place of supply rules.
From June 2014, this has changed. Belgium’s
new rules now specify which warehousing
services are connected with immovable
property and which are not. This is believed
to be in response to the European Court
judgment in the C-155/12 RR Donnelley case
last year, and in anticipation of Council
Implementing Regulation no. 1042/2013,
which becomes binding in all EU Member
States in 2017.
The new rules outline the VAT treatment of
three situations:
Exclusive use
Where warehousing facilities are provided
for the “Exclusive use” of the foreign
trader, this is now considered a supply of
immovable property as per article 47 of
Directive 2006/112/EC. This implies that
Belgian VAT is, in principle, due (at the
standard rate of 21%) on such services
provided in a warehouse located in Belgium,
regardless of where the service provider and/or
the recipient are established.
Article 31a, 2(h) of the Implementing
Regulation states that “Services connected
with immovable property, as referred to
in Article 47 of Directive 2006/112/EC,
shall include only those services that have
a sufficiently direct connection with that
property [...] including the storage of goods
for which a specific part of the property
is assigned for the exclusive use of the
customer.”
Facilities are deemed to be for “Exclusive use”
if all of the following conditions are met:
• The exclusive use must be assigned to the
service recipient for the entire period of the
agreement;
• The service recipient is entitled to freely
access its goods in the warehouse,
irrespective of the fact that the warehouse
owner provides some kind of security;
• The agreement must explicitly determine
the location of the warehouse or the area
within the warehouse where the goods will
be stored;
• The goods must be identifiable;
• The service provider cannot change the
actual place of storage of the goods within
the warehouse without consent of the
owner of the goods;
• The service recipient must be able to
exclude any other person from the use of
the locations attributed to the recipient,
and use this at the recipient’s discretion; the
owner of the warehouse is not entitled to
render any additional services regarding to
the stored goods.
ROMANIA
ECJ ruling on Romanian authorities’ treatment
of financial leases on termination of lease
READ MORE 4
2. 2 INDIRECT TAX NEWS 3
EDITOR’S
LETTER
Dear Readers,
Greetings from Barcelona where I’m
currently transiting en route home
to Dublin from Madrid where I
hosted BDO’s International VAT & Customs
conference for 2014. This year’s conference
was attended by 86 delegates from
34 Countries including the US, Canada,
South Africa, India, the Dominican Republic,
Israel and European countries from both
within and outside the European Union.
This event, attended by Partners and Senior
Management who are all full time Indirect
Tax experts, was our largest Conference
ever, surpassing last year’s attendance in
Dublin by over 33%.
It was also the first time that we have
had a Customs & International Trade
focused forum running in tandem with our
mainstream VAT focused event, which
enabled all delegates to get together on
the first morning and last afternoon of the
event.
I am very proud of the progress that I and
my colleagues at the BDO International
VAT Centre of Excellence have made
(assisted, of courses, by the leaders of our
APAC and Customs sub-groups) over the
three years since I initially became Chair.
Hopefully it is a source of comfort to you
knowing that BDO continues to improve
its capacity and that we continue to ensure
we have the highest standards to meet the
ever increasing demands for both domestic
and international guidance and leadership
on indirect tax related issues.
I hope you will find this edition of ITN a
useful source of information and many
thanks, as always, to Sarah Halsted our
editor, our contributors from around
the globe, and our colleagues at the
BDO International Office who provide
background assistance to us.
Kind regards from Dublin.
IVOR FEERICK
Chair – BDO International VAT Centre of
Excellence Committee
Ireland – Dublin
ifeerick@bdo.ie
Non-exclusive use
Where the foreign trader does not have
exclusive access because other traders may
rent the facility too, then the general B2B and
B2C rules apply.
In general this will be the case if one or more
of the previously mentioned criteria are
not met, for example if there is no specific
warehouse (or part of a warehouse) designated
for the goods to be stored at, or if the owner
does not have access to the stored goods.
Additional warehousing services
If warehousing services are rendered along
with other services related to the storage of
goods, this transaction no longer qualifies
as the mere letting of storage space. Under
agreements that do not grant an exclusive use
and/or the warehouse owner renders a set of
services (in order to maintain or improve the
quality of the goods) of which the warehouse
service is only a part, the link with the
warehousing services is less direct. In this case,
the general B2B or B2C place of supply rules
apply.
KAATJE BONDEWEL
Belgium – Brussels
kaatje.bondewel@bdo.be
ECUADOR
VALUE ADDED TAX (VAT) ON
IMPORT OF SERVICES
Value Added Tax (VAT) is levied in
Ecuador on the transfer of ownership
and importation of goods and services
at all stages of manufacture, as well as on
copyrights, industrial property, and related
rights.
In the case of services imported into Ecuador,
the tax law specifies that they are subject to
VAT at 12%. VAT paid on imported services
can be deducted from VAT the importer
generates on its sales. In other words, the
taxpayer in Ecuador can reduce the VAT it
must pay to the tax authorities by the amount
of VAT it pays on imported services.
In order to qualify for this deduction,
the services must meet the following
requirements:
• The service provider must be domiciled
abroad and must provide a proper invoice
that shows, in detail, the service provided,
the price charged for the service, and
identification of the buyer (the taxpayer in
Ecuador).
• The taxpayer in Ecuador must issue a
document authorised by the tax authorities
called “Liquidación de Compras de bienes
y prestación de servicios”. This document
must show the VAT rate of 12% separate
from the total cost of the imported services.
VAT generated on the importation of services
is subject to 100% withholding and must
be paid to the Ecuadoran tax authorities by
the importer of the services in the month
following the registered date of the invoice in
the accounting books of the taxpayer.
VERONICA PEÑA
Ecuador – Quito
vpena@advice.com.ec
3. INDIRECT TAX NEWS 3 3
IRELAND
ADJUSTMENT OF TAX DEDUCTIBLE
IN RELATION TO UNPAID
CONSIDERATION
ISRAEL
ISRAELI AND U.S. CUSTOMS
AUTHORITIES SIGN AEO MUTUAL
RECOGNITION AGREEMENT
LATVIA
RECOMMENDATIONS FOR THE
ASSESSMENT OF COUNTERPARTY
AND TRANSACTION RISKS
Introduction The Finance (No. 2) Act 2013 introduced
Section 62A to the VAT Consolidation
Act 2010. This new Section provides
for adjustments to be made in respect of tax
deductible in relation to unpaid consideration.
In simple terms, this means that where a
taxable person has claimed a VAT deduction
in a taxable period (referred to as the
“initial period”) on a valid VAT invoice received
from a supplier but the taxable person has
not paid the supplier for the related goods or
services within six months, that person must
repay to Revenue the amount of input credit
originally claimed.
This provision was introduced with effect
from 1 January 2014. As a result, the
consideration in respect of invoices on
which VAT was reclaimed in the January/
February 2014 VAT return must be paid
no later than 31 August 2014, the last day
of the sixth month following the initial
period. Consequently, the July/August 2014
VAT return will be the first return that an
adjustment in respect of unpaid consideration
may arise.
Similarly, an adjustment must be made where
only part payment is made in satisfaction
of the debt. In such cases an adjustment is
required to be made in respect of the amount
of the invoice that remains unpaid.
Where a taxpayer has made a full or partial
adjustment but subsequently makes a
payment to the supplier, the taxpayer can
claim the input credit in its VAT return for the
period in which the payment is made.
Grounds for not making an adjustment
The Revenue Commissioners accept that
there may be instances where an adjustment
is not required and Revenue has issued
some guidance in this regard. The guidelines
relate to situations where there are genuine
commercial reasons why the taxpayer has
made no payment or only partial payment to
the supplier.
JIMMY RYNHART
Ireland – Dublin
jrynhart@bdo.ie
In June 2014 a mutual recognition
agreement was signed by the Israeli
Customs authority and the U.S.’s Customs
and Border Protection. The agreement
acknowledges each other’s approvals
process for “Authorised Economic Operator”
programs for the purpose of customs
mutual simplifications and facilitation (the
US program is known as “C-TPAT”, which
stands for Customs Trade Partnership against
Terrorism). Mutual recognition helps facilitate
trade between the two countries because it
reduces the need for security and customs
inspections of authorised exporters from one
country by the customs authority of the other
country.
An authorised economic operator (or
“authorised operator”) is a trader that has
been examined by the customs authorities
of one of the two countries and has been
found to satisfy certain requirements and
criteria, such as security, customs compliance,
compliance with tax and trade rules and
regulations, financial strength, appropriate
computerised systems, documentary controls,
inventory controls, a proper plan for recovery
from catastrophic incident, and so on.
Authorised operators will enjoy simplified
process regarding their international trading,
including: a lower level of customs checking
and procedural requirements that will save
them time and costs, including, for example,
the possibility of having documents examined
before the arrival of the Imported goods, and
so on.
The Authorised Economic Operator program
of the Israeli Tax Authority is based on the
SAFE Framework of Standards of the World
Customs Organisation. As part of this
program, unified standards for the security,
compliance, and financial viability of the
global supply chain were introduced. The
program is based on voluntary participation
of companies (including importers, exporters,
intermediaries, carriers, terminal operators,
distributors and so on) that are willing
to adopt the SAFE framework for trade
facilitation and global supply chain security.
As of today, Israel has signed mutual
recognition agreements with the American
and Taiwan authorities and it is in the process
of negotiating such an agreement with South
Korea and other countries.
AYELET YITZHAKI
Israel – Tel Aviv
ayelety@bdo.co.il
In daily operations, companies are exposed
to the risk of being involved in fraudulent
transactions. Companies that are involved
in such transactions can lose the right to
claim deductions in Latvia for input VAT. To
minimise the chances of being involved in
such transactions, taxpayers should conduct
reliability assessments of counterparties they
deal with.
There are two requirements under the Latvian
VAT Act that taxpayers must comply with to
recover input VAT:
1. The taxpayer must check to see whether the
counterparty is registered in the Latvian VAT
register; and
2. If the counterparty is from another Member
State, the taxpayer must check to see if the
counterparty has a valid VAT number.
The Latvian State Revenue Service (SRS)
recommends that taxpayers get evidence
on counterparties’ reliability themselves.
Unfortunately, it is not always possible for
taxpayers to obtain all the information about a
counterparty (for example, whether a business
unit is registered with SRS, whether it uses the
assets in its possession for business activities,
and so on). As a result, taxpayers are exposed
to a certain amount of risk.
To help taxpayers protect their right to recover
input VAT, the Latvian SRS recently issued
recommendations regarding assessment of a
counterparty and the risk of a transaction. The
recommendations are based on the guidance
developed by the United Kingdom.
The recommendations outline the steps
taxpayers should take to assess reliability
of a counterparty. For example, the SRS
recommends that taxpayers look for publicly
available information on counterparties
– things like registration data, licenses
and permits issued to the counterparty,
information about the counterparty’s
financial position (such as liabilities,
insolvency proceedings, and so on), and
the operational results of the counterparty.
It is worth emphasising, however, that
the recommendations are for information
purposes only and are not binding on
taxpayers.
INITA SKRODERE
GITA AVOTINA
Latvia – Riga
inita.skrodere@bdotax.lv
gita.avotina@bdotax.lv
4. 4 INDIRECT TAX NEWS 3
ROMANIA
EUROPEAN COURT OF JUSTICE RULING ON ROMANIAN AUTHORITIES’
TREATMENT OF FINANCIAL LEASES ON TERMINATION OF LEASE
The European Court of Justice’s opinion
was sought in the Romanian case of BCR
Leasing IFN SA vs. National Agency for
Fiscal Administration (ANAF)-DGAMC & DGSC
with the payment of value added tax on goods
leased under a financial leasing contract but
deemed missing after not being returned to the
leasing company.
BCR Leasing (BCR) is a limited company whose
main activity is financial leasing. It acquires
cars from various suppliers and fully deducts
the input VAT paid on these purchases. After
acquiring the cars, the company enters into
financial leasing contracts with natural and
legal persons who then use the vehicles for the
term of the contract. BCR remains the owner
of the cars. As a result of late or non-payment
under the leases, BCR terminated some of the
contracts it had with defaulting lessees. Since
BCR did not receive payments in respect of
the terminated contracts, BCR stopped issuing
invoices relating to those contracts and it
stopped collecting the corresponding VAT.
During an audit carried out in 2011, the tax
authorities found irregularities relating to the
manner in which BCR indicated, recorded,
and declared VAT for the period from
1 September 2008 through 31 December 2010.
By notice of 30 August 2011 and a tax
audit report of the same date, the tax
authorities imposed an additional payment
of RON 19,266,551 on BCR in respect of VAT,
as well as a penalty of RON 9,502,774 for
delayed payment.
The tax authorities took the position that for
the entire term of a financial lease the lease
must be treated as a supply of services and,
depending on whether the lessee exercises an
option to purchase the vehicle, there may be
a supply of goods on expiry of the contract.
According to the tax authorities, if the goods
are vehicles that are returned to BSR at the
end of the financial lease, BSR is required to
apply the provisions of the Romanian Fiscal
Code on self-supplies and must collection VAT
and must issue invoices to itself in respect of
those supplies.
BSR argued that the national legislation the
tax authorities relied on is not compatible with
the system introduced by the VAT Directive.
As a result, BCR filed an action for the
annulment of the tax notice. The Bucharest
Court of appeal recently heard the case.
Because of the possible conflict between
the Romanian tax authorities’ interpretation
and the VAT Directive, the ECJ was asked to
determine:
• Whether a leasing company could
be considered to supply goods for
consideration within the meaning of
article 16 of Directive 2016/112/EC in which
the lease terminated as a result of the
lessee’s breach of the terms of the lease
and the lessor has followed the statutory
procedures for recovery but did not recover
anything from the lessee. Or,
• Whether there might there be a supply of
goods for consideration within the meaning
of Article 18 of Directive 2006/112/EC.
The ECJ ruled (Judgment C-438/13) that
Articles 16 and 18 of Directive 2006/112/EC
must be interpreted as meaning that there has
not been a supply of goods for consideration
for the purposes of the Directive if a leasing
company cannot recover from the lessee
following termination as a result of the lessee’s
breach and therefore BCR should not be
required to collect VAT for unrecovered goods
from the lessees.
DAN BARASCU
HORIA MATEI
Romania – Bucharest
dan.barascu@bdo.ro
horia.matei@bdo.ro
SPAIN
BILL AMENDING SPAIN’S VAT LAW
On 6 August 2014 a proposed bill
amending various provisions of
Spain’s VAT law was published in the
Houses Official Journal.
The provisions of the bill can be categorised
into three groups:
1. Changes made to implement the new place
of supply rule for telecommunication,
broadcasting, and electronic services as a
result of Directive 2006/112/EC, which will
come into force on 1 January 2015.
2. Various modifications required as a result
of recent decisions in the Court of Justice of
the European Union, including:
• Application of the general VAT rate (21%),
rather than the reduced VAT rate (10%),
on medical and health equipment and
other medical devices meant for hospital
use (Case C-360/11).
• Modification of the Special Regime
applicable to Travel Agencies
(Case C-189/11).
• Modifications to the determination of
the taxable base for payments in kind
(Case C-549/11).
• Abolition of the exemption for
intervention services provided by public
notaries in exempt financial transactions.
• Other miscellaneous modifications.
3. Various other measures, including:
• Antifraud measures.
• Modifications intended to introduce
technical improvements.
• Simplification measures within the
scope of the VAT Directive that are
meant to clarify and eliminate certain
requirements.
The final amending law will be published in the
State Official Journal in the following months
with these modifications expected to come
into force at the end of the year.
CARLOS BAUTISTA
ROSARIO ESTELLA
Spain – Madrid
carlos.bautista@bdo.es
rosario.estella@bdo.es
5. INDIRECT TAX NEWS 3 5
UGANDA
THE LEGALITY OF THE IMPOSITION OF DOMESTIC VAT ON IMPORTS OF GOODS INTO UGANDA CHALLENGED
Like most developing countries, Uganda
struggles with the problem of how to
collect tax from one of the biggest
sectors of the economy: the so-called
“informal sector”. The legislators and the
Uganda Revenue Authority (URA) have made
several attempts to bring Uganda’s informal
traders within the tax net in a manner that
is administratively efficient. One such effort
is the URA’s imposition and collection of
“domestic VAT” on imports of goods.
Though the imposition and collection of
domestic VAT has long been considered
controversial, it was not legally challenged
until the class action case of Kiki Rwaheru
and 13,945 others vs. URA (Civil Suit No. 117
of 2013). In that case the plaintiffs sought a
declaration that there is no legal basis for the
URA to charge domestic VAT on imported
goods. On 10 January 2014, the Commercial
Division of the High Court of Uganda delivered
is partial judgement covering the points of
law raised in the case. The court will deliver
its judgment separately on the merits of the
facts of the case as proven by the plaintiffs,
particularly for the purposes of awarding costs.
Background
Article 152 (1) of Uganda’s Constitution
of 1995 prohibits the imposition of tax unless
authorised by an Act of Parliament and there
is no specific Act of Parliament authorising
the imposition of domestic VAT on non VAT
registered importers. As a result, the general
public and tax community were surprised
when the URA included a note in its VAT
guidelines that stated that “Domestic VAT for
Non VAT registered importers” had come into
effect on 1 March 2002. In the guidelines the
URA defined domestic VAT as VAT charged
on goods whose value is UGX 4 million or
more. According to the guidelines, importers
who meet the following are required to pay
domestic VAT:
• The importer is not VAT registered.
• The Cost, Insurance, Freight (CIF) value (as
determined by Customs) of the goods is
UGX 4 million or more.
• The goods are subject to the standard VAT
rate of 18%.
• The goods are not personal effects or motor
vehicles.
The guidelines further provide that domestic
VAT is payable at the customs entry point
together with “other customs taxes” and the
value for domestic tax purposes is computed
by applying a 15% mark-up on the value on
which VAT at Customs is computed, which
is the sum total of CIF plus import duty and
excise duty (the so-called Customs VAT value).
The mark-up is the expected value added
between the stage of importation and sale.
Based on the URA’s guidelines, the total
combined VAT suffered by the importers
is 33%, which is neither provided for by
the Value Added Tax Act (Cap 349) nor
the East African Community Customs
Management Act, 2004.
In the Kiki Rwaheru case, the URA explained
its justification for imposition of domestic
VAT on imports of goods. According to the
URA, given the fact that many of taxpayers
that fall into the informal sector intend to
circumvent compulsory VAT registration,
since they do not keep proper records, have
no fixed places of abode, have multiple
registrations, or are simply not registered
for VAT at all, the URA faces administrative
challenges in ascertaining output VAT. As a
result, the URA feels it is important to collect
input VAT (18% VAT at importation) and
output VAT (domestic VAT at 15%) at the
point of importation. Furthermore, the URA
claims that it has authority to do so under
Section 32 (1) (c) of Cap 349, which empowers
the URA Commissioner General to make an
assessment of the amount of tax payable by a
person where the Commissioner General has
reasonable grounds to believe that a person
will become liable to pay tax but is unlikely to
pay the amount due.
The URA further explained that the domestic
VAT did not amount to a different tax with
a different rate because the calculation was
based on an estimated mark-up (15%) that
was meant to represent the expected value
added on imports between the stage of
importation and sale in the domestic market,
taking into account costs incurred as well as
the profit margin. The URA also noted that
aggrieved taxpayers had a legal right to file
a VAT return and could seek a refund for the
overpaid tax under Section 42 (3) of Cap 349.
As the plaintiffs’ counsel in the case pointed
out, by imposing domestic VAT on imports,
the URA made several assumptions that
contravened the provisions of Cap 349. First,
the URA assumed that all imports of goods
worth over UGX 4,000,000 are for sale in
the domestic market at a profit and that from
such a sale, output tax would always exceed
input tax and, as a result, an importer is always
in a VAT payable position rather than a VAT
refundable position. The plaintiffs argued that
by assuming that all importers of goods worth
over UGX 4,000,000 are eligible for VAT
registration, the URA was effectively rendering
the annual VAT registration threshold
of UGX 50,000,000 set out in Cap 349
meaningless.
And finally, the plaintiffs argued that to require
unregistered persons to pay VAT without
establishing whether they are taxable persons
under the Act is contrary to the provisions of
Cap 349.
In concluding that imposition of domestic
VAT is not illegal per se, the judge pointed
out that it is was irregular for the URA to
assess taxes on taxable supplies before the
supply takes place. The judge added that
the URA’s conclusion that all importers are
unlikely to pay VAT on future taxable supplies
of goods should be determined on a case-by-
case basis, rather than on a blanket basis
for administrative convenience. The judge
concluded that it was unnecessary for the
URA to resort to relying on estimated VAT
assessments on speculative future supplies
and, instead, the URA should use the various
penal provisions specified by Cap 349, such as
penalties for failure to apply for registration,
failure to lodge returns, and failure to maintain
proper records.
The judge’s conclusion in this case has
wide-ranging implications for the URA and
taxpayers alike. Subject to factual evidence
and, of course, verification by a URA audit,
some taxpayers may seek refunds of overpaid
VAT in accordance with the provisions
of Cap 349. Given the URA’s practice of
instigating wide-ranging audits into taxpayer’s
affairs to verify refunds claimed, the URA may
be overwhelmed by the large number of pre-refund
verification audits and possible legal
challenges that may result. Importers who
have erroneously paid import VAT face the
dilemma of deciding whether to pursue the
VAT refund or to forfeit it in order to avoid the
intrusive URA audits.
RITA ZABALI
Uganda – Kampala
rita.zabali@bdo-ea.com