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1/1/2015 TBES and MOSS One step forward the Definitive Arrangements Malta, 15 October 2014 Paolo Centore - P. Centore & Associates – Genoa – Milan – Rome.

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Presentation on theme: "1/1/2015 TBES and MOSS One step forward the Definitive Arrangements Malta, 15 October 2014 Paolo Centore - P. Centore & Associates – Genoa – Milan – Rome."— Presentation transcript:

1 1/1/2015 TBES and MOSS One step forward the Definitive Arrangements Malta, 15 October 2014 Paolo Centore - P. Centore & Associates – Genoa – Milan – Rome

2 1/1/2015 TBES and MOSS One step forward the Definitive Arrangements Agenda 1.Compass of the Rules 2.Place of taxation of TBES 3.Presumption and Rebuttal of Presumption 4.The Rules of MOSS Paolo Centore - P. Centore & Associates – Genoa – Milan – Rome

3 3 1. Compass of the Rules Dir. 2008/8/EC Art. 58 Art.59 Art. 59(a) Art. 59(b) Art. 204 (1) Art. 357 Art. 358 Art. 358(a) Art. 359 Art. 360 Art. 361 Art. 362 Art. 363 Art. 364 Art. 365 Art. 366 (1) Art. 367 Art. 368 Art. 369 (1) Art. 369(a) Art. 369(b) Art. 369(c) Art. 369 (d) Art. 369(e) Art. 369(f) Art. 369(g) Art. 369(h) Art. 369(i) Art. 369(j) Art. 369(k) All. II Dir. 2006/112/EC Art.5 Paolo Centore - P. Centore & Associates – Genoa – Milan – Rome

4 4 1. Compass of the Rules Reg. 904/2010/EU Art. 7 Art. 57(a) Art. 57(b) Art. 57(c) Art. 57(d) Art. 57(e) Art. 57(f) Art. 57(g) Art. 57(h) Art. 58 Art. 58(a) Art. 58(b) Art. 58(c) Art. 59 Art. 59(a) Art. 60 Art. 60(a) Art. 61 Art. 61(a) Art. 61(b) Art. 62 Art. 63 Art. 63(a) Art. 63(b) Art. 63(c) All. I Reg. 282/2011/EU amended by Reg. 967/2012/EU and Reg. 1042/2013/EU Art. 43, art. 44, art. 45, art. 46, Art. 47 Reg. 2012/815/EU Artt. 1-7 Paolo Centore - P. Centore & Associates – Genoa – Milan – Rome

5 5 2. Place of Taxation of TBES Rules at Art. 58, Dir. 2006/112/EC - telecommunications services - radio and television broadcasting services - electronically supplied services, in particular those referred to in Annex II Supplier Member State of Identification (MSI) Customer (Non-Taxable Person) Member State of Consume (MSC) Place of Taxation MS1 MS2 NON EUMS1/MS2 MS1NON EU OUT of EU Paolo Centore - P. Centore & Associates – Genoa – Milan – Rome

6 6 The question is: Do you know where your customer is established, has permanent address or usually resides ? 3. Presumption and Rebuttal of Presumption Paolo Centore - P. Centore & Associates – Genoa – Milan – Rome

7 7 7° Whereas Reg. 1042/2013/EU Where a non-taxable person is established in more than one country or has a permanent address in a country but usually resides in another one, priority shall be given to the place that best ensures taxation at the place of actual consumption. To avoid conflicts regarding jurisdiction between Member States, the place of actual consumption should be specified. CUSTOMER ESTABLISHED OR RESIDING IN MORE THAN ONE COUNTRY Art. 24 Reg. Where services covered by the first subparagraph of Article 56(2) or Articles 58 and 59 of Directive 2006/112/EC are supplied to a non-taxable person who is established in more than one country or who has his permanent address in one country and his usual residence in another, priority shall be given: (a) in the case of a non-taxable legal person, to the place referred to in point (a) of Article 13a of this Regulation, unless there is evidence that the service is used at the establishment referred to in point (b) of that article; (b) in the case of a natural person, to the place where he usually resides, unless there is evidence that the service is used at his permanent address. Paolo Centore - P. Centore & Associates – Genoa – Milan – Rome 3. Presumption and Rebuttal of Presumption

8 8 Taxable ❶ Place of central administration ❷ Fixed establishment Non Taxable Legal Person Natural person ❶ Place of central administration ❷ Permanent Address ❷ Fixed establishment ❶ Usual Residence ❷ IF YOU HAVE THE PROOF! 3. Presumption and Rebuttal of Presumption Paolo Centore - P. Centore & Associates – Genoa – Milan – Rome

9 9 General Overview of the Presumptions Point 7.2. EN As from 1 January 2015, in accordance with Articles 44 and 58 of the VAT Directive, telecommunications, broadcasting and electronic services will, in any case, be taxable at the place of the customer. That is the case irrespective of whether those services are supplied by EU or non-EU businesses and independently of the status of their customer (as a taxable or a non-taxable person). Why the Presumptions? Assist supplier in identifying place of taxation High volume low value supplies Provide certainty Presumptions can be rebutted in certain circumstances Paolo Centore - P. Centore & Associates – Genoa – Milan – Rome 3. Presumption and Rebuttal of Presumption

10 10 General Overview (artt. 24a, 24b, 31c Reg. 282/2011/EU) Digital Supplies ❶ Art. 24a para. 1At a physical location of the supplierB2B/B2C ❷ Art. 24a para. 2 On board means of transportB2B/B2C ❸ Art. 24c, let. a)Through a fixed land line B2C ❹ Art. 24c, let. b)Via mobile networks B2C ❺ Art. 24c, let. c)Using a decoderB2C ❻ Art. 24c, let. d)Other digital supplies (general presumption)B2C ❼ Art. 31dSupply at hotels and similar locations B2B/B2C Paolo Centore - P. Centore & Associates – Genoa – Milan – Rome 3. Presumption and Rebuttal of Presumption

11 11 ❶ Supplies at a physical location of the supplier B2B/B2C Presence of the customer is required Examples - Telephone booth, internet cafe, hotel lobby, wi-fi spot Presumption The place where the services is supplied Does not apply to ‘over the top’ service See point 1.6. EN: “Over the top’ services – services which can only be delivered thanks to a connection that is established via communication networks (i.e. an underlying telecommunications service is necessary) and therefore do not required the physical presence of the recipient at the location where the service is supplied”. Paolo Centore - P. Centore & Associates – Genoa – Milan – Rome 3. Presumption and Rebuttal of Presumption

12 12 ❷ Art. 24a para. 2 On board means of transport B2B/B2C Example Internet access supplied on board ships, aircraft, trains Passenger transport within the EU Journey of the means of transport (not journey of the passenger) Presumption The place of departure of the transport Does not apply to Passenger transport outside EU See. Para EN: Telecommunications, broadcasting and electronic services supplied on board ships, aircraft or trains carried out outside the section of passenger transport operation effected within the Community (in the sense as explained above) are therefore covered by Article 24a(1) or, if the conditions of that presumption are not met, by one of the other presumptions included in Article 24b (in practice that will be either the specific presumption based on the use of a SIM card or the general presumption). See. Paolo Centore - P. Centore & Associates – Genoa – Milan – Rome 3. Presumption and Rebuttal of Presumption

13 13 Fixed land line Presumption = where land line is located Mobile networks (Prepaid/Post paid) Presumption = country code of SIM card Decoder /viewing card Presumption = where decoder is located or viewing card is sent Decoder + landline? Landline takes precedence ❸ Art. 24c, let. a)Through a fixed land line B2C ❹ Art. 24c, let. b)Via mobile networks B2C ❺ Art. 24c, let. c)Using a decoderB2C Paolo Centore - P. Centore & Associates – Genoa – Milan – Rome 3. Presumption and Rebuttal of Presumption

14 14 ❻ Art. 24c, let. d)Other digital supplies (general presumption)B2C Supplies not covered by specific presumptions Supplier decides based on 2 pieces of non-contradictory evidence More than 2 pieces? Contradictory? – use 2 most reliable Paolo Centore - P. Centore & Associates – Genoa – Milan – Rome 3. Presumption and Rebuttal of Presumption

15 15 Evidence Billing address IP address Bank details SIM Country code Location of fixed landline Other commercially relevant information Examples Unique payment mechanisms Customer trading history Paolo Centore - P. Centore & Associates – Genoa – Milan – Rome 3. Presumption and Rebuttal of Presumption

16 16 Rebuttal of presumptions Supplier can rebut presumptions 3 pieces of non-contradictory evidence A supplier is not obliged to rebut a presumption Even though there can be evidence to the contrary, the supplier may for determining the place where the customer belongs decide to rely on the presumption and disregard evidence to the contrary (see EN point ) Tax Administration can rebut presumptions where indications of misuse or abuse Paolo Centore - P. Centore & Associates – Genoa – Milan – Rome 3. Presumption and Rebuttal of Presumption

17 17 Paolo Centore - P. Centore & Associates – Genoa – Milan – Rome 4.The Rules of MOSS

18 18 Range of Application of MOSS Taxable Persons Taxable supplies EU Supplier Non EU Supplier EU SchemeNon EU Scheme Art. 57(a) Reg. 282/2011/EU What TBES are Art. 58 dir. 2006/112/EC All. II All. I e II Paolo Centore - P. Centore & Associates – Genoa – Milan – Rome Art. 7 Reg. 282/2011/EU 4.The Rules of MOSS

19 19 EU SCHEME Supplier in MS1 Member State of Identification (MSI) Art. 10 Reg. 282/2011 Customer (B2C) in MS2 Member State of Consume (MSC) Art Reg.282/2011 Status of Supplier Art. 9 Dir. 2006/112/EC NON EU SCHEME How Moss Rules work Supplier NON EU NO PE MS1 MS2 ….. MSI PE in MS1 MSI 1 TIN MS1MSI More TINs MS1 MSI PE OUT OF THE GROUP (see ECJ C-7/13 Skandia) VAT GROUPS (art. 11 dir.) Paolo Centore - P. Centore & Associates – Genoa – Milan – Rome 4.The Rules of MOSS

20 20 TP MS 1 MS2 RULES MSI TBES MOSS EU SCHEME Customer B2C MS2 MSC Rates, Invoices, Cash Accounts, Bad Credits etc. Paolo Centore - P. Centore & Associates – Genoa – Milan – Rome 4.The Rules of MOSS

21 21 TP MS 1 DOMESTIC RULES MSI EU SCHEME Customer B2C MS2 MSC PE MS 2 TBES MOSS Paolo Centore - P. Centore & Associates – Genoa – Milan – Rome 4.The Rules of MOSS

22 22 MS 3 TBES MOSS MSI NON EU SCHEME Customer B2C MS4 MSC NON EU TP MS1 MS2 Paolo Centore - P. Centore & Associates – Genoa – Milan – Rome 4.The Rules of MOSS

23 23 PE MS1 MSI NON EU SCHEME Customer B2C MS2 MSC NON EU TP TBES MOSS 4.The Rules of MOSS

24 24 Registration / Deregistration EU - NON EU SCHEME Information date REGISTRATION Effective date 10 th April1 st July before first supply Date of supply 1 st March 10 th April after first supply Information date Paolo Centore - P. Centore & Associates – Genoa – Milan – Rome 4.The Rules of MOSS

25 25 Registration / Deregistration EU - NON EU SCHEME Information date DEREGISTRATION Effective date Volutary Deregistration OUT OF MOSS MOVING FROM MS1 TO MS2 Exclusion 15 June 15 Sept. 1 th July 1 th Oct. quarantine period 2 Calendar quarters Quarantine period 8 Calendar quarters 10 April21 March 10 August8 July No quarantine period Information date Effective date To both MS Paolo Centore - P. Centore & Associates – Genoa – Milan – Rome Art. 369(e) Dir. 2006/112 Art. 58 Reg.282/2011 Effective: 1^ day of next calendar quater 4.The Rules of MOSS

26 26 MOSS Return MSI Annex III Reg. 2012/815/EU Reference date Submission Date 20 Apr.1.1 / 31.3 TP MS1 2° (and others) Warning MSI MSC Penalties, charges NO RETURN ? 1° Warning Paolo Centore - P. Centore & Associates – Genoa – Milan – Rome 4.The Rules of MOSS

27 27 Payments MSITP TBES MOSS Customer B2B MSC Reference dateReturn datePayment date 1.4/ / NO PAYMENT ? MSI other WarningsMSC Paolo Centore - P. Centore & Associates – Genoa – Milan – Rome 3 Warnings for 3 consecutive quarters other Warnings Collection,penalties,charges 4.The Rules of MOSS

28 28 DEDUCTION TP NO DEDUCTION SUPPLIER MSC Dir. 2008/9/CE Dir. 86/560/CEE Refund Paolo Centore - P. Centore & Associates – Genoa – Milan – Rome 4.The Rules of MOSS

29 29 Thank You! Paolo Centore - P. Centore & Associates – Genoa – Milan – Rome


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