Gynnas aktörer från ett land utanför EU på den inre marknaden? : Vid tillhandahållandet av elektroniska tjänster
Electronic commerce constitutes a big market economy in the world, therefore also in the internal market. Electronic commerce, which includes electronic services, has expanded in the past years. In the end of year 2005, the U.S. Census Bureau estimated the total U.S. electronic commerce sales at $ 86.3 billion. This featured a 24.6 percent increase from the previous year 2004. Even though this is U.S. statistics, it gives a view of how electronic commerce has expanded the last years.Within the internal market, the Council of the European Union constituted a number of regulations on harmonisation, mainly in the Sixth VAT Directive . The purpose of harmonising the VAT regulations is to prevent distortion of the competition between suppliers established in the European Union. The internal market is intended for the suppliers established in the European Union, nevertheless suppliers from the countries outside the European Union have access to the internal market. The place of supply is of importance to investigate if a supplier from a country outside the European Union is in favour before a supplier established within the European Union in supply of electronic services to persons non-liable to tax.To investigate whether or not a supplier from a country outside the European Union benefit before suppliers established within the internal market the place of supply is of significance. The first question that arises is whether the transaction falls within the scope of article 2. Article 2 establishes that the subject to value added tax is the supply of services affected for consideration within the territory of the country by a taxable person. Article 3 es-tablishes the territory of the country, see attachment 4. The second step to clarify is if the person supplying the services is liable for tax according to article 4, see attachment 5. If the criteria for article 2 and 4 are satisfied the next step is article 9 and to establish the place of supply.To define the country with the right to tax, the establishment of the place of supply leads to the place of transaction. The principle of destination and principle of origin need to be explained. From the beginning, the Commission applied the principle of origin to reach the single market. In spite of the fact that the Commission’s long-term goal is to apply the principle of origin, rules are constantly changed to be applicable on the principle of destination.The supplying of electronic services did not exist when the Sixth VAT Directive was proposed. Therefore the concept of electronic services is not defined in the directive. When the Council of the European Union approved Directive 2002/38/EC , the concept of electronic services was classified and it was also made clear what is established as the place of supply. Notwithstanding the concept was not exhaustive and the Council of the European Union approved the regulation 1777/2005 in which electronic services are defined further, both in the regulation and in the attachment belonging to the regulation. The classifications of electronic services are independent of whether the supplier is established in a Member States or country outside the European Union. The place of supply depends on if the supplier is established in a Member State or outside the European Union.Before directive 2002/38/EC, a supplier from a country outside the European Union could escape value added tax when supplying services to non-liable tax persons. The Council of the European Parliaments intention to lay down the directive was to set aside dis-torted competition and to clarify the rules of the place of supply in situations when a sup-plier is established in a country outside the European Union.With directive 2002/38/EC the rule that decides the place of supply to the one where the supplier are registered were taken into force. In relation to that, a regulation was introduced where suppliers from a country outside the European Union shall register for value added tax in a Member State.The permanent establishment is of certain significance to establish the place. In some situations, a permanent establishment is considered as the place of supply and in others it is the head office. The classification of a permanent establishment is mentioned in article 9 in the Sixth VAT Directive but there is no definition of what it comprises or the criteria. To in-vestigate what a permanent establishment is one is referred to go through the European Court of Justices case-law. In income tax, there are situations when a server can constitute a permanent establishment, which is not possible in value added tax.
School:Högskolan i Jönköping
Source Type:Master's Thesis
Keywords:supplier from a countryoutside eu internal market electronic services sixth vat directive place of supply permanent establishment
Date of Publication:02/02/2007