WU GTPC — Additional VAT Questionnaire

Unresolved cross-border VAT disputes distort trade flows within the EU and can influence the location decisions of companies. At the same time, they divert the resources of tax administrations away from improving the operation of VAT systems. This is why the EC has been considering launching work to assess the size of the problem and potential solutions.

This is the context in which we have launched a multi-stakeholder initiative to explore the causes of such disputes, the current mechanisms available to minimise and resolve them and what new options are open to the European Union. This exercise is part of a global initiative which was launched last year, and you can find a preliminary analysis of the responses to the 2021 questionnaire provided by over 70 respondents from business and government (see the link)

The aim of this latest request for information is to provide a sound factual basis focused on the EU on which to suggest a menu of options that could be considered at the level of the Union.

This Questionnaire's objective is to collect additional data from businesses, business federations, tax advisors, lawyers and other experts to obtain better insights into cross-border VAT disputes in the EU. This would allow us to assess the scale of the problem, identify the root causes of cross-border VAT disputes with the goal of suggesting solutions to reduce the number of cross-border VAT disputes through prevention and resolution mechanisms.

Disputes in the context of this survey refers to disagreements between tax administrations and taxpayers on the interpretation and application of the legislation or on the relevant facts. In some cases, the taxpayer may decide not to pursue a disagreement into a formal litigation process for different reasons because this would be e.g., too costly, too time consuming given the amount of tax at stake or where they feel it may adversely influence their relationship with the tax administration. A number of questions in Part I of the questionnaire request information on these types of disagreements. 

We are reviewing cross border VAT disputes that can be bilateral, trilateral or maybe even multilateral.

Bilateral cross border VAT disputes are between one taxable person and one tax authority. There is a bilateral cross border dispute in the EU when there is a dispute between a tax administration of an EU Member State and a taxable person not established in the Member State where the dispute occurs. The taxable person can be established in another Member State or outside of the EU (EU-EU or non-EU-EU). Examples are disputes on the applicable VAT rate for a supply of goods in that Member State, on an EU VAT refund or a 13th Directive VAT refund etc.

Trilateral cross-border VAT disputes are between a taxable person and two tax authorities of two different countries. There is a trilateral dispute in the EU, when there is a dispute between a taxable person and two tax administrations of two different member states (MS1 and MS2). The taxable person can be established in one of those two Member States (MS1 or MS2) or in another Member State (MS3) or outside of the EU. Examples are as follows:

• A taxable person (A) established in MS1 provides cross-border B2B services to customers in MS2. The taxable person (A) has a fixed establishment in MS2. The tax authorities of Member State 1 deem those B2B services to be cross-border whereas the tax authorities from Member State 2 claim that the fixed establishment of (A) in MS2 intervened in the provision of the services and are therefore not cross-border but subject to VAT in MS2 (EU-EU).
• A taxable person (A) in MS1 provides contract manufacturing services to a business (B) established in MS2. The taxable person and the tax authorities of MS2 treat those services as cross-border services subject to VAT in MS2. The tax authorities of MS1 disagree and claim that (B) has a fixed establishment in MS1 and that therefore VAT of MS1 should have been invoiced by the taxable person (A) on the services supplied to the contract manufacturer (EU-EU).
• A taxable person (A) in MS1 sells goods to supplier (B) established in MS2. B sells the goods to customers established and registered for VAT in MS3. A has to deliver the goods directly to B's customers in MS3. All parties reported those supplies as 'simplified' under the EU triangulation simplification scheme. The tax authorities of MS3 claim that the supplier B has a fixed establishment in MS3 and that B therefore should have reported an intra-Community acquisition of the goods supplied by A in MS3 and B should also have charged VAT of MS3 to the customers in MS3 (EU-EU).
• This third example could also occur when A is not established in the EU but has a VAT registration in MS 1 (non-EU - EU).