Article 2 of the CVD [1] provides that the following transactions shall be subject to VAT :
a. the supply of goods for consideration within the territory of a Member State by a taxable person acting as such;
b. the intra-Community acquisition of goods for consideration within the territory of a Member State by :
i. a taxable person acting as such, or a non-taxable legal person, where the vendor is a taxable person acting as such who is not eligible for the exemption for small enterprises provided for in Articles 282 to 292 and who is not covered by Articles 33 or 36;
ii. in the case of new means of transport, a taxable person, or a non-taxable legal person, whose other acquisitions are not subject to VAT pursuant to Article 3(1), or any other non-taxable person;
iii. in the case of products subject to excise duty, where the excise duty on the intra-Community acquisition is chargeable, pursuant to Directive 92/12/EEC, within the territory of the Member State, a taxable person, or a non-taxable legal person, whose other acquisitions are not subject to VAT pursuant to Article 3(1);
c. the supply of services for consideration within the territory of a Member State by a taxable person acting as such;
d. the importation of goods.
Articles 2(1)(a) and 2(1)(c) of the CVD apply to the sales of goods and services, while Article 2(1)(b) and 2(1)(d) of the CVD apply to the purchase of the services. Thus, as a general rule, in the former case the liability to charge and account for VAT falls on the seller, and in the latter case falls on the importer or acquirer. The derogations applicable to the list are provided in Article 3 of the CVD. Article 4 of the CVD provides a list of transactions that are specifically excluded from VAT.
It should also be noted that some Member States impose VAT on the transactions that are not covered by the Article 2 of the CVD. Usually this is the case with transactions that are exempt with deduction (see Article 169(b) of the CVD). The reason for this is merely technical, since some Member States refer to those transactions in the same manner as the CVD (thus treating them as «exempt with deduction»), and some Member States refer to them as to the transactions subject to VAT, but at a 0% rate (thus they are «zero-rated»). This does not lead to any distortions, since economically both definitions result in the same VAT treatment. The only potential difference is possible in statistical and/or reporting information, because if transaction is classified as «exempt with deduction», in the administrative and statistical reports it belongs to the section of exempt supplies, and if the transaction is classified as «zero-rated», it may fall within the category of reduced rates. In some Member States the «zero rate» is rather classified as something separate from both the reduced rates and exemptions (e.g. in the United Kingdom).
The rule in Article 2(1)(a) provides a general definition of the treatment of supply of goods as a taxable transaction. The details of this rule are defined further in the CVD. A particular attention should be focused on the term «for consideration». The CVD does not specifically define this term, so references should be made to the
The intra-Community acquisition of goods was designed as one of the steps towards the transitional system of VAT in the EU. The term «intra-Community» means the transactions that occur between different Member States [2]. It substitutes the imports to one Member State from another. Likewise, the export to one Member State from another Member State is referred to as the «intra-Community supply». The main reason for implementing the rules on intra-Community acquisition of goods was the abolishment of the border control within the EU after its formation in 1993 [3].
Every Member State determines if there is an intra-Community acquisition (subject to VAT) without taking into account whether there is or not an intra-Community supply exempt from VAT in the Member State of origin. Therefore, an intra-Community acquisition of goods subject to VAT in a Member State of destination is completely independent from whether there have been an intra-Community supply of goods exempt from VAT with deduction in the Member State of origin. Thus, there is no link between them – intra-Community-supply and intra-Community acquisition are two separate operations. The intra-Community acquisition is subject to VAT at the VAT rate established by the Member State of acquisition.
The place of an intra-Community supply of goods is the place where the transport begins. Similarly to exportation, this supply is exempt with deduction (zero-rated), meaning that no VAT is charged (see Article 169(b) of the CVD). A trader registered for VAT in the State may apply the exemption with deduction to the supply of goods to a business customer in another Member State if: the customer is registered for VAT in that other Member State, the customer's VAT registration number (including country prefix) is obtained and retained in the supplier's records this number, together with the supplier's VAT registration number, is quoted on the sales invoice, and the goods are dispatched or transported to another Member State
VAT registered traders involved in intra-Community supplies and acquisitions of goods have responsibilities in both the VAT Information Exchange System (VIES) and in the INTRASTAT regime. When a registered taxable person makes intra-Community supplies of goods or services to a taxable person in another Member State, summary details of those supplies must be returned to the tax authorities. This return, known as the VIES return, is to enable the authorities in each Member State to ensure that intra-Community transactions are properly recorded and accounted for.
Traders whose intra-Community supplies of goods exceed a quarterly established threshold of a Member State are obliged to submit monthly VIES returns. Quarterly VIES returns may be made by traders who supply intra-Community services or whose supplies of intra-Community goods do not exceed that threshold. Under certain circumstances traders may submit annual VIES returns. Taxable persons making intra-Community acquisitions are also obliged to make a monthly Intrastat return, for statistical purposes, where the value of goods acquired by them from other Member States or of goods supplied by them exceeds the established threshold per annum. VIES and Intrastat returns are submitted to the specifically designated office of the tax authorities of the Member State of registration.
For example :
A taxable person [4] registered in Ireland supplies goods to the taxable person in Germany. The supply is exempt with deduction in Ireland. A taxable person in Ireland reports the transaction in a VIES return.
Upon the acquisition, the taxable person in Germany applies the domestic rate applicable to the supply of these goods, the treatment should be the same as for the domestic transaction. Taxable person established in Germany accounts for the transaction via his regular VAT return and reports it to both VIES and Intrastat, as well as.
Third type of transaction subject to VAT is the supply of services. Similarly to the definition of the supply of goods, the supply of services is further described in the CVD.
The fourth and final type of transaction subject to VAT is importation of goods. The act of importation occurs when the goods enter the territory of the EU for the VAT purposes (Article 5 of the CVD) and are placed under the customs procedure of free circulation [5]. The definition of imports and other rules related to importation are provided below in the CVD.
Conclusions:
Ukraine meets the requirements of the EU legislation on the taxable transactions. The only type of transaction that is not known to Ukraine is the intra-Community acquisition, but it can exist only within the EU. However, such a supply as exportation is not regarded as a taxable transaction in the EU. The reason is merely technical, since instead of the zero rate in the EU the concept of “exemption with deduction” is used, which is economically the same.
1. Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax. OJ L 347, 11.12.2006, p. 1-118.
2. R. Lipniewicz & P. Selera, Intra-Community Supplies of Goodsunder Polish VAT Law, 22 Intl. VAT Monitor 1 (2011).
3. H. Kogels, Stopping the VAT Leaks in the European Union?, 25 Intl. VAT Monitor 5 (2014).
4. In the language of Irish VAT legislation registered taxable persons are referred to as «accountable persons».
5. Y. Fedchyshyn, Postponed Accounting in the European Union, 25 Intl. VAT Monitor 1 (2014).
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