Soudní dvůr EU připomněl, že je znalost evropské legislativy DPH klíčová

The CJEU has once again reminded that knowledge of European VAT legislation is crucial

The CJEU, in its judgment C 695/20 Fenix International Ltd, considered the preliminary question of whether the EU Council had exceeded its powers and obligations by adopting Article 9a[1] of Council Implementing Regulation No 282/2011, which refers to Article 28 of the VAT Directive.

The UK tax authority charged VAT to the operator of Only Fans, a social network which operates as a digital platform and connects so-called creators with their fans, collecting subscriptions from the fans and forwarding those payments to the creators after deducting its commission. According to the tax authorities, this platform had the status of a commission agent precisely in accordance with Article 9a of the Implementing Regulation (it provided the service in its own name on behalf of the creators) and should have paid tax not on the commission it retained but on the full amount it received from the fans.

The CJEU pointed out that the purpose of the implementing regulation is to clarify the provisions of the VAT Directive and thereby ensure a uniform interpretation of selected articles, without supplementing or amending those articles of the Directive. On a detailed analysis of the wording of the two articles, the CJEU then concluded that the relevant implementing provision of the Regulation did not alter the normative content of the article of the Directive and was entirely consistent with its objectives.

This judgment should serve as a warning not only to operators of online platforms with paid services, but to all VAT payers who have not yet paid attention to the provisions of the implementing regulation. In many cases, the Czech VAT Act directly refers to the implementing regulation and directs the VAT payer to look for further details in it. However, this is not the rule and, specifically in the case of services provided through a commission agent, there is no such reference to an article of the Implementing Regulation. Unfortunately, in the case of VAT as a harmonised tax, it is not possible to rely only on the wording of the Czech law and the references below the line, but it is necessary to actively check the interpretation of the individual provisions.

If you are interested, we will be happy to discuss this judgment with you in more detail. For more information, please contact the authors or the EY client team you are working with.

Authors:

Jevgenija Bajzíková 
Michaela Kleinpeterová

[1] „For the purposes of Article 28 of the [VAT] Directive, where electronically supplied services are provided through a telecommunications network, interface or portal, such as an application download platform, the taxable person involved in the supply of those services shall be deemed to be acting in his own name but on behalf of the provider of those services, unless that taxable person expressly identifies that provider as the person supplying the services in question and that fact is reflected in the contractual arrangements between the two parties“