Category Archives: VAT

General taxation on polluting activities (TGAP)

The scope of the tax is extended to five new elements: Arsenic, Selenium, Mercury,Benzene, Aromatic polycyclic hydrocarbon.
Multiplication by 3 of the  Rates currently applicable to discharge of sulphur oxyde, non methane hydrocarbons, solvents, other volatile organic components and complete dusts in suspension.
Threshold for taxation has been lowered to 5 tons per annum for complete dusts in suspension.

Does the existence of a VAT permanent establishment in another Member State prevent from the benefit of the VAT refund procedure of the VAT accrued in that other Member State ?

The combined provisions of the eighth VAT directive (79/1072/CEE) and of directive 2008/9/CE aim at enabling a taxpayer established in one EU Member State to be entitled to the refund of the input VAT accrued in another Member State because , due to the absence of local activity generating output VAT, this taxpayer cannot offset his local VAT credit.

These provisions (article 1 of the 8th directive and article 3a of directive 2008/9/CE) indicate that two cumulative conditions must be satisfied for the VAT refund to be excluded:   namely the existence  of a VAT permanent establishment AND the performance of operations by such permanent establishment.

In a decision of October 2012 the EUCJ has specified that the existence of active operations is essential for the implementation of the 8th directive and indicated that the refund might be excluded under the condition  that the said permanent establishment effectively performs such operations and not only merely has the aptitude to do so.

The judges concluded that the right for the refund of such VAT credit may not be refused on the sole ground of the existence of a permanent establishment.

The Court finally reminded that the fact for a foreign european entity (applying for refund of the local VAT)  of having a subsidiary in this other Member State is irrelevant and does not question the right for the local VAT refund.

Deducting importation VAT

DEDUCTING IMPORTATION VAT BEFORE PAYING IT

The judgment given by the CJEU on last March 29th in response to a demand for a preliminary ruling raised by the French Conseil d’Etat gives a clearcut analysis relating to the right to deduct importation VAT, its relation with the chargeable event and with the moment when the tax becomes chargeable, and concludes that a Member State may NOT « make the right to deduct value added tax on importation conditional upon the actual prior payment of that tax by the taxable person where that taxable eprson is also the holder of the right to deduction ». Continue reading