The value of the voucher directive on the EU VAT treatment of vouchers

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Notes

1 COM (2012) 206 final.

2 Council Directive (EU) 2016/1065 of 27 June 2016 amending Directive 2006/112/EC as regards the treatment of vouchers OJ 2016, L 177, p. 9–12.

3 Point 3 of the preamble of the Voucher Directive.

4 See for example: Case C-126/88 Boots Company plc v Commissioners of Customs and Excise ECLI:EU:C:1990:136, Case C-33/93 Empire Stores Ltd v Commissioners of Customs and Excise ECLI:EU:C:1994:225, Case C-317/94 Elida Gibbs Ltd v Commissioners of Customs and Excise ECLI:EU:C:1996:400, Case C-288/94 Argos Distributors Ltd v Commissioners of Customs & Excise ECLI:EU:C:1996:398, Case C-48/97 Kuwait Petroleum (GB) Ltd v Commissioners of Customs & Excise ECLI:EU:C:1999:203, Case C-427/98 Commission of the European Communities v Federal Republic of Germany ECLI:EU:C:2002:581, Case C-398/99 Yorkshire Co-operatives Ltd v Commissioners of Customs & Excise ECLI:EU:C:2003:20, Case C-40/09 Astra Zeneca UK Ltd v Commissioners for Her Majesty’s Revenue and Customs ECLI:EU:C:2010:450 and Case C-461/12 Granton Advertising BV v Inspecteur van de Belastingdienst Haaglanden/kantoor Den Haag ECLI:EU:C:2014:1745.

5 Point 2 of the preamble of the Voucher Directive.

6 Point 6 of the preamble of the Voucher Directive.

7 Proposal COM (2012) 206 final Article 30a (1): ‘“Voucher” shall mean an instrument carrying a right to receive a supply of goods or services, or to receive a price discount or rebate with regard to a supply of goods or services and where there is a corresponding obligation to fulfil this right.’

8 Voucher Directive Article 30a (1):’(…)‘voucher’ means an instrument where there is an obligation to accept it as consideration or part consideration for a supply of goods or services and where the goods or services to be supplied or the identities of their potential suppliers are either indicated on the instrument itself or in related documentation, including the terms and conditions of use of such instrument.’

9 Proposal COM (2012) 206 final, p. 6.

10 Point 4 of the preamble of the Voucher Directive.

11 See for example: Case C-126/88 Boots Company plc v Commissioners of Customs and Excise ECLI:EU:C:1990:136, Case C-317/94 Elida Gibbs Ltd v Commissioners of Customs and Excise ECLI:EU:C:1996:400, Case C-427/98 Commission of the European Communities v Federal Republic of Germany ECLI:EU:C:2002:581 and Case C-398/99 Yorkshire Co-operatives Ltd v Commissioners of Customs & Excise ECLI:EU:C:2003:20.

12 Case C-317/94 Elida Gibbs Ltd v Commissioners of Customs and Excise ECLI:EU:C:1996:400. See our comments in Ben JM Terra and Elze T Terra, “The proposal on the EU VAT treatment of vouchers” (2012) World Journal of VAT/GST Law 84, at 89–90.

13 Paragraph 2 point 4 of COM (2012) 206 final.

14 In our commentary on the proposal of the Commission we suggested that such a requirement would involve an unnecessary complication. It could result in different treatments between EU Member States for example between EU Member States where a single identity of several suppliers is assumed based on VAT Grouping and where it is not. See Ben JM Terra and Elze T Terra, “The proposal on the EU VAT treatment of vouchers” ibid n 12.

15 This bares resemblance to the definition for services in Article 24 Directive 2006/112/EC which are defined as any transactions which do not constitute the supply of goods.

16 Point 5 of the preamble of the Voucher Directive.

17 Joined cases C‐250/14 and C‐289/14 Air France-KLM and Hop!-Brit Air SAS v Ministère des Finances et des Comptes publics ECLI:EU:C:2015:841.

18 Point 12 of the preamble of the Voucher Directive.

19 According to the facts given in the order for reference in Case C-520/10 (Lebara Ltd v The Commissioners for Her Majesty's Revenue & Customs ECLI:EU:C:2012:264) the distributors of Lebara phonecards resell the phonecards in their own name and on their own behalf. The CJEU did not question this point although it was also noted in the facts given that the phonecards sold by Lebara displayed the brand name of Lebara. The explicit communication of the name is however mentioned as a relevant indicator to decide on whether sellers act in their own name in Case C-464/10 (Belgian State v Pierre Henfling and Others ECLI:EU:C:2011:489 point 43) which is one of the few cases that provided more insight to this topic.

20 It seems to us that this may result in the undesirable situation that taxable persons may be required to account for VAT on the same SPV multiple times. For instance in a chain of distributors that all act in the name of the other taxable person.

21 Point 10 of the preamble of the Voucher Directive.

22 Is one to assume that there is no separate supply of services if there is also no separate consideration charged? If so, suppliers not wanting to charge any VAT could make this work to their advantage.

23 Case C-4/94 BLP Group plc v Commissioners of Customs & Excise ECLI:EU:C:1995:107 point 19 and Case C-98/98 Commissioners of Customs and Excise v Midland Bank plc ECLI:EU:C:2000:300 point 30.

24 The CJEU explicitly refers to the possibility of such an exception in Case C-98/98 Commissioners of Customs and Excise v Midland Bank plc ECLI:EU:C:2000:300 point 32.

25 For example, if one buys a sweater for €100 including 20% VAT using a voucher indicating a monetary value of €100, the taxable amount shall be ((100/120) × 100) €83,33. The redeemer will have been able to fully deduct the input VAT incurred on the purchase of the sweater at the time of purchase and will be required to pay in (100-83,33) €16,67 at the moment of the supply of the sweater. If, however, only €95 was paid for the MPV, the purchase of a sweater with a €100 price tag will result in a VAT liability only on the amount actually paid. The taxable amount will be €79.17 ((100/120) × €95) and the VAT will be €15.83.

26 Case C-288/94 Argos Distributors Ltd v Commissioners of Customs & Excise ECLI:EU:C:1996:398.

27 In other words, the taxable amount shall be the advertised value of the goods or services acquired in return for the MPV excluding VAT. In this respect please also review the example provided in footnote 25.

28 Point 12 of the preamble of the Voucher Directive.

29 As is promised in Article 410b of the Voucher Directive.