AMENDMENT OF THE VAT DIRECTIVE IN RELATION TO E-COMMERCE THROUGH ELECTRONIC INTERFACE OR PORTAL
Electronic commerce of goods and services has undergone major regulatory modifications for VAT purposes in recent years. The European Commission has tried to adapt the tax regulations according to the changes in the economic environment that have been originated with the emergence of online platforms or marketplaces such as Amazon and the use of them for the trade of goods through the internet.
Thus, with the approval of Directive (EU) 2017/2455 important modifications were introduced, by which a special regime was established that would complement the existing Mini one-stop shop (MOSS) regime for telecommunication, broadcasting and television services, as well as those provided electronically, extending it to the so-called intra-community distance sales of goods, to all services provided to people who do not have the status of taxable person and to distance sales of goods imported from third countries or territories.
Similarly, with regard to taxable persons that facilitate the electronic commerce of goods, through the use of electronic interfaces such as an online market, a platform, a portal or other similar means, the Directive established that said taxable person would be considered that has received and supplied the goods himself. For this reason, it was considered necessary to modify the VAT Directive again, to adapt the location and accrual rules to the new regulations, as well as to ensure the right to deduct VAT for the taxpayer who facilitates these supplies and to establish the possibility for these taxable persons of applying for the special regime.
For this reason, Council Directive 2019/1995 of November 21, 2019 has been approved, and the most relevant modifications thereof are set out below:
- In connection with the Article 14 bis of the Directive, which considers that a taxable person has received and supplierd the goods by himself when he facilitates, either the distance selling of goods imported from third countries whose intrinsic value does not exceed € 150, or the supply of goods within the Community by a non-established taxable person to a person who is not a taxable person, through an electronic interface, portal, online market or similar, a new article is added (Article 36.b) by which it is established that the transport of the goods will be attributed to the supply made by that taxable person.
In this sense, for the purpose of locating the supply of goods, it will be considered that the supply with transport is the one made by the intermediary, holder of the electronic interface, and not the acquisition of goods carried out by said operator as well.
- For the purpose of accruing the tax, in the same case than above, it will be understood that VAT has been accrued and it is due at the time the payment has been accepted.
- In relation to the supply of goods that is considered to have been made to said operator, it will be exempt from VAT. However, this supply of goods, despite being exempt, is included among the operations that generate the right to deduct, so it is not a full exemption that limits this right.
- With regard to the possibility of the Member States to derive status of tax debtor to the representative appointed by a non-established taxable person, it may not be applicable to taxable persons who have opted for the special regime for services provided by non-established taxable persons in the Community.
- In line with the above modifications, the special regime is extended to operators that facilitate the supply of goods through an electronic interface, portal or online market.
- As regard the special regime, the following clarifications are added for the definitions set out in article 369 bis:
- When a taxable person, who does not have the seat of economic activity in the Community but has more than one permanent establishment in it, it will be the Member State of identification the one that has a permanent establishment and in which the taxable person has indicated to qualify for the special regime.
- In the same previous case, but in which the taxable person does not have any permanent establishment in the Community, the Member State of identification will be the one from which the goods are dispatched. When there is more than one Member State of dispatch, it will be the taxpayer who indicates which is the Member State of identification.
- The Member State of consumption shall mean: i) in the case of the provision of services, in which the provision takes place, ii) in the case of intra-community distance sale of goods, in which the expedition ends and, iii ) in the case of supplies of goods provided by an operator through an electronic interface, when the expedition begins and ends in the same Member State, it shall be that Member State.
These provisions must be implemented by the Member States as of January 1, 2021.