Treatment of Outsourced Elements of Payment Transactions under EU VAT

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1 European Union Dr R.N.F. Zuidgeest* Treatment of Outsourced Elements of Payment Transactions under EU VAT In this article, the author comments on two recent ECJ judgments, in Axa and Everything Everywhere, on the VAT treatment of services relating to transfers and payments. The author puts them in the perspective of previous ECJ case law and pending new EU VAT legislation. Financial institutions had hoped to find in these judgments an answer to the question of how activities outsourced by them must be treated for VAT purposes but the ECJ has not given any further explanation of the scope of the VAT exemption for transactions concerning transfers and payments. 1. Introduction By its judgments in Axa 1 and Everything Everywhere, 2 the Court of Justice of the European Union (ECJ) has recently delivered two decisions on the VAT treatment of services relating to transfers and payments. Under Art. 135(1)(d) of the current VAT Directive, 3 transactions concerning transfers and payments are in principle exempt from VAT. Although this exemption was originally intended for payment services rendered by financial institutions, it is clear from the ECJ s judgment in SDC 4 that the exemption also covers the same services rendered by other service providers. More generally, under EU law, the application of VAT exemptions and other VAT regimes is dependent on the nature of the supply and not on the status of the person who makes the supply. In Axa and Everything Everywhere, the common issue was whether or not the exemption for transactions concerning transfers and payments applied to services relating to payments rendered by service providers in the course of their normal business, which was not within the financial sector. Businesses in the financial sector had been looking forward to the ECJ s decisions in these two cases because the outcome could have been very important for the current trend in the financial sector of outsourcing major elements of payment transactions by financial institutions to third-party service providers. Outsourcing is motivated by a continuing focus of financial institutions on their key processes and on cost reduction. The introduction of the Single European Payment Area (SEPA), which involves the creation of an area within which all electronic payments are considered to be domestic transactions to the effect of eliminating all differences between national and cross-border payments within the European Union, had forced banks to invest heavily in IT platforms in order to achieve more efficient and safer cross-border payment procedures at lower costs. In this respect, some banks have chosen not to build the necessary infrastructure in house, but to outsource it. Consequently, many banks now purchase services relating to transfers and payments, such as processing, clearing and settlement of payments, from third parties who have specialized in those elements of payment transactions. Since, due to their exempt transactions, banks are normally entitled to recover only a limited part of the VAT on their inputs, a VAT charge on outsourced elements of the processes of transfers and payments would threaten to thwart their attempts to reduce their operational costs by outsourcing specific elements of their activities. 5 This VAT burden can only be averted if those elements are also covered by a VAT exemption. The scope of the exemption for transactions concerning transfers and payments has lacked clarity for many years. Of course, it has been clear for more than a decade from the time the ECJ delivered its judgment in SDC in 1997 that outsourced services are covered by an exemption if, viewed broadly, they form a distinct whole and are specific to, and essential for, an exempt transaction. However, the mere fact that a constituent element is essential for completing an exempt transaction does not warrant the conclusion that the service which that element represents is exempt. The wording of the exemption for transactions concerning transfers and payments does not in principle preclude a transfer from being broken down into separate services which then may constitute transactions concerning transfers within the meaning of that provision and which are invoiced by specifying the elements of those services. The invoicing is, however, irrelevant for the ap- * Tax adviser at ING, Amsterdam, and liaised to Erasmus School of Economics, Institute for Economics and Taxation of Erasmus University, Rotterdam. 1. ECJ judgment of 28 October 2010 in AXA UK PLC v. Commissioners for Her Majesty s Revenue and Customs, Case C-175/09, not yet officially published. 2. ECJ judgment of 2 December 2010 in Everything Everywhere Ltd, formerly T-Mobile (UK) Ltd v. Commissioners for Her Majesty s Revenue and Customs,Case C-276/ Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, OJ L 347 of 11 December Art. 135(1)(d) of the VAT Directive corresponds with Art. 13(B)(d)(3) of the former Sixth Directive. 4. ECJ judgment of 5 June 1997 in Sparekassernes Datacenter v. Skatteministeriet, Case C-2/95, [1997] ECR I For a description of the facts, see Some EU Member States, such as Belgium, Estonia, France, Germany, and Lithuania, have introduced an option for taxation of payment transactions on the basis of Art. 137(1)(b) of the VAT Directive. In these Member States, banks can choose to charge VAT on payment services to their customers, which then enables them to claim full recovery of VAT paid to their suppliers of related inputs. Under those circumstances, taxation of outsourced services is not a real burden. 105

2 R.N.F. Zuidgeest plication of the exemption in question, provided that the actions necessary for effecting the exempt transaction can be identified in relation to the other services. It is also clear that, for the purposes of the exemption for transactions concerning transfers and payments, the subcontracted services must have the characteristics of an exempt service that has the effect of transferring funds, and entails changes in the legal and financial situation of the parties involved. Furthermore, the exemption is not subject to the condition that the service be provided by an institution which has a legal relationship with the end customer; the fact that a transaction covered by the exemption is carried out by a third party but appears to the end customer to be a service provided by the bank does not preclude exemption for the transaction. Finally, for the purposes of exemption, a subcontracted service must not consist of a mere physical or technical supply, which cannot be exempt. To date, it is not clear what those conditions precisely mean in practice. It is not clear whether the processing, clearing and settlement of payments form a distinct whole, which fulfils the specific, essential functions of an exempt payment service and whether or not they entail changes in the legal and financial situation of the parties involved. If those conditions were fulfilled, it is not clear whether only the outsourcing of these combined elements would qualify for exemption or whether or not the exemption could also be applied to the subcontracting of the separate elements. It is also unclear whether the exclusion of mere physical or technical supplies from the exemption is still relevant in respect of IT supported financial services, as these services can nowadays simply not be supplied when an IT platform is technically not functioning properly. 6 Financial institutions had hoped to find an answer to those questions in the ECJ s judgments in Axa and Everything Everywhere. However, it turned out that they had expected too much: the ECJ has not given any further explanation of the scope of the VAT exemption for transactions concerning transfers and payments, and its decisions in Axa and Everything Everywhere have not answered any question as regards the VAT treatment of activities outsourced by financial institutions. In this article, I will comment on the two recent judgments and put them in the perspective of previous ECJ case law and pending EU VAT legislation. 2. Collection of Dentist Subscription Fees AXA was the representative member of a VAT group which also included Denplan. The activities of Denplan comprised, inter alia, the operation of a payment plan for dentists and their patients. Under that plan, the dentists provided their patients with a particular level of dental care on a continuing basis against payment by those patients of a fixed monthly fee. In the framework of such a dentist subscription, Denplan acted as the dentists agent in receiving from the patients the monthly fees due to their dentist. Those payments were made under the direct debit scheme, i.e. the payments were channelled through the so-called Bankers Automated Clearing System ( BACS ), an automated inter-bank settlement system established and operated by a company whose members were banks. To that end, Denplan communicated the patients bank account numbers and subscription fees to the BACS. The BACS transmitted that information to the processing centre of the patient s bank. Subsequently, the bank debited the patient s account and notified the BACS accordingly. The BACS then posted a corresponding credit to Denplan s bank for the credit of Denplan s account. By this method, the amounts requested were transferred from the patients bank accounts to Denplan s bank account. The BACS also sent Denplan reports as to which payments had been made and which had not. In turn, Denplan provided payment advices to the dentists and contacted the patients whose payments it had not received. After ten days, Denplan paid each dentist the subscription fees it had received from the accounts of that dentist s patients less agreed deductions. Part of these deductions was a fee which Denplan charged to the dentists for its service of collecting the subscription fees. The issue was whether or not that service was exempt from VAT. In the course of the subsequent proceedings, the national court asked the ECJ for a further explanation of the characteristics of an exempt service that has the effect of transferring funds and entail[s] changes in the legal and financial situation, as the ECJ had formulated those criteria in its judgment in SDC. In addition, the national court asked the ECJ whether Denplan s services were covered by the exemption for transactions concerning transfers and payments. The ECJ only answered the second question of the referring court. With reference to settled case law on the question of whether a package of supplies consists of two or more distinct supplies or must be treated as a single supply, and on the basis of the principle that terms used to specify VAT exemptions must be interpreted strictly, the ECJ decided that Denplan s services must be considered as constituting debt collection services, which have been excluded from the exemption for transactions concerning transfers and payments. According to the ECJ, this exclusion should be interpreted broadly as the exemption itself is to be interpreted strictly. Since Denplan s services were aimed at obtaining payment of debts, the ECJ decided that the VAT exemption could not be applied. 3. Payment Handling Services Everything Everywhere was a telecommunications company that provided mobile telephone services for which it offered various payment methods. Where a customer paid by means of direct debit or BACS transfer, Everything Everywhere did not impose an additional charge. 6. See also: Oskar Henkow, Financial Activities in European VAT, A Theoretical and Legal Research of the European VAT System and the Actual and Preferred Treatment of Financial Services (Lund University, 2007), pp INTERNATIONAL VAT MONITOR MARCH/APRIL 2011 IBFD

3 Treatment of Outsourced Elements of Payment Transactions under EU VAT However, payments made by debit or credit card, through telephone or the Internet, through a third-party payment agent or by cheque gave rise to the imposition of an additional separate payment handling charge of GBP 3. The company argued that the payment handling charge must be regarded as consideration for a transaction concerning transfers and payments and, consequently, was exempt from VAT. In the course of the subsequent proceedings, the national court referred seven questions to the ECJ on the qualification of the payment handling service as an exempt service and, by its eighth and final question, the referring court asked the ECJ whether the payment handling charge should be considered consideration for a supply which is separate from the provision of mobile telephone services. Just like in AXA, the ECJ only answered the referring court s final question and found that, for VAT purposes, the payment handling charge did not constitute consideration for a supply of services that was distinct and independent from the principal supply of telecommunications services. With reference to its judgments in CPP, 7 Part Service 8 and Swiss Re, 9 the ECJ reiterated that transactions which, from an economic point of view, comprise a single supply must not be artificially split, so as not to distort the functioning of the VAT system. In certain circumstances, several formally distinct services must be considered to be a single transaction when they are not independent, in particular where one or more elements are to be regarded as constituting the principal service whilst one or more other elements are to be regarded as ancillary services. Those ancillary services then share the VAT treatment of the principal service. A service must be regarded as ancillary to a principal service if it does not constitute for customers an aim in itself, but a means of better enjoying the principal service supplied. The ECJ continued by noting that the principal services that Everything Everywhere supplied to its customers were mobile telephone services, whereas payment of the payment handling charge only enabled the customers to pay for those services in a particular manner. Therefore, the alternative payment methods did not constitute an aim in themselves, neither for the customers, nor for Everything Everywhere. For the latter, the alternative payment methods only enabled it to increase the volume of its mobile telephone services. Thus, for VAT purposes, the payment handling services must be regarded as being ancillary to the telecommunications services and, taken together, they form a single taxable supply. Since the answer to the eighth question enabled the referring court to resolve the dispute in the main proceedings, the ECJ did not have to answer the seven questions on the scope of the exemption for transactions concerning transfers and payments. 4. Comments 4.1. Data handling The principles and criteria discussed in 1. as being relevant for the purposes of the exemption for transactions concerning transfers and payments are derived from the ECJ s judgment in SDC, which concerned an association, Sparekassernes Datacenter, whose members were mostly savings banks. The association provided to its members, and to certain other customers who were connected to its data handling network, services relating to, inter alia, transfers of funds by electronic means. Those services were analogous to those which the biggest financial institutions carried out themselves through their own data handling centres. The essence of the ECJ s decision was that SDC s data handling services could be covered by a VAT exemption if, viewed broadly, they formed a distinct whole and were specific to, and essential for, an exempt transaction. For the application of the exemption for transactions concerning transfers and payments, the services must have the effect of transferring funds and entail changes in the legal and financial situation of the parties involved. Comparison of the scenarios of AXA and SDC reveals that, in AXA, the data processing, clearing and settlement activities of the BACS were similar to those of SDC. In that respect, the two cases are comparable. However, in AXA, it was not the VAT treatment of the BACS services that was in dispute, but that of Denplan s services, which made use of the BACS and fed it with data. These latter services were aimed at obtaining payment of debts. In this respect, it seems logical that the ECJ concluded that Denplan s services must be qualified as debt collection services, which are expressly excluded from the VAT exemption for transactions concerning transfers and payments. It should be noted that the ECJ explicitly found in AXA that Denplan s services constituted transactions concerning payments which are in principle exempt from VAT. Since the ECJ made this statement without giving any further explanation, that statement could have far-reaching consequences. It could, for example, be interpreted as meaning that processing, clearing and settlement of payments are also in principle transactions concerning transfers and payments. It may even be possible to conclude that those activities form a distinct whole and fulfil the specific, essential functions of an exempt payment service, and entail changes in the legal and financial situation of the parties involved. The question remains whether they can be considered as not constituting mere physical or technical supplies. 7. ECJ judgment of 25 February 1999 in Card Protection Plan Ltd. v. Commissioners of Customs and Excise, Case C-349/96, [1999] ECR I ECJ judgment of 21 February 2008 in Part Service Srl v. Ministero dell Economia e delle Finanze, Case C-425/06, [2008] ECR I ECJ judgment of 22 October 2009 in Swiss Re Germany Holding GmbH v. Finanzamt München für Körperschaften, Case C-242/08, [2009] ECR I

4 R.N.F. Zuidgeest In AXA, the VAT exemption did not apply on the mere ground that Denplan s services qualified as debt collection, and debt collection has expressly been excluded from the exemption. However, other services outsourced by financial institutions, such as processing, clearing and settlement of payments, are not excluded from the exemption for transactions concerning transfers and payments. For the application of the VAT exemption for payment transactions in practice, it would have been useful if, in its decision in AXA, the ECJ had devoted some words on further clarification of the characteristics of an exempt service that has the effect of transferring funds and entails changes in the legal and financial situation of the parties involved, as it decided in SDC Debt collection and factoring The VAT exemption for transactions concerning transfers and payments laid down by Art. 13(B)(d)(3) of the former Sixth Directive 10 was also a topic of discussion in MKG. 11 In that case, a legally independent company had taken over from a connected importer of motor vehicles the debts that had not been paid by the importer s customers (car dealers). Apart from the question of whether factoring is an economic activity (which the ECJ answered in the affirmative), the main question was whether the services of the factoring company were exempt from VAT. In this respect, the ECJ found it relevant that in all language versions of Art. 13(B)(d)(3) of the (former) VAT Directive, with the exception of the English and Swedish versions, only debt collection was expressly excluded from the exemption for transactions concerning deposit and current accounts, payments, transfers, debts, cheques and other negotiable instruments. The English and Swedish language versions of that provision excluded debt collection and factoring. Since the ECJ has adopted the approach that the scope of exemptions must be limited to what is strictly necessary to safeguard the interests that those derogations from the general VAT system aim to protect, it decided that exclusions from exemptions must be interpreted broadly. On those grounds, the ECJ ruled in MKG that, just like debt collection, factoring services are subject to VAT. In its decision in AXA, the ECJ adopted the same reasoning as in MKG and reiterated that debt collection and factoring are excluded from the VAT exemption for transactions concerning transfers and payments. Those exclusions must be interpreted broadly as the exemption itself is to be interpreted strictly. On basis of the ECJ s findings in MKG, it is clear that Denplan s services could not possibly be exempt from VAT because the services were only aimed at obtaining payment of debts. However, from an economic point of view, it could also be reasoned that debt collection and factoring are in fact essential elements of payment transactions. It is therefore questionable that the current text of the VAT Directive correctly reflects today s economic reality. It remains to be seen whether the proposal of the European Commission for amendment of the VAT regime applicable to financial services and insurance transactions 12 will change the situation in the future. This proposal has already been under discussion in the Council for more than three years and it is still uncertain if and, if they do, in what form the Member States will accept it. At this moment, it can reasonably be assumed that, if the proposal is ever adopted, the amendments will mainly be limited to modernization of the definitions of the exempt financial services and insurance transactions Financial transfers and transfers of claims or debts It is interesting to compare the ECJ s judgments in AXA and Everything Everywhere with the Commission s proposals for the VAT treatment of financial services in the future. Based on the most recent version of the proposal, financial transfers as mentioned in the proposed Art. 135(1)(e) of the VAT Directive will be exempt. In this context, financial transfer means the execution of an order for transmission of funds. 14 These terms are further clarified in Art. 6 of the proposal for the accompanying Implementing Regulation to include, for example, the execution of electronic transfers, execution of payments through mobile telephones or through the Internet, clearance, transfer of funds, and settlement services between financial institutions. 15 Although it seems that, based on the clarification, payment handling services comparable to those for which Everything Everywhere made the payment handling charge, provided to customers who pay for non-exempt 10. Unlike Art. 13(B)(d(3) of the English version of former Sixth Directive, the corresponding Art. 135(1)(d) of the current English version of the VAT Directive no longer excludes factoring from the exemption for transactions concerning transfers and payments. That linguistic amendment has, however, no effect because the ECJ has decided that factoring and debt collection are services which must be treated on the same footing. 11. ECJ judgment of 26 June 2003 in MKG-Kraftfahrzeuge-Factoring GmbH v. Finanzamt Gross-Gerau, Case C-305/01, [2003] ECR I Proposal for a Council Directive amending Directive 2006/112/EC on the common system of value added tax, as regards the treatment of insurance and financial services, COM(2007) 747 final. 13. In its Note of 8 November 2010, No /10 (FISC 129), the Belgian Presidency proposed to focus only on modernization of these definitions and to abandon the so-called option for taxation of financial services and the special exemption for the services of cost-sharing association of financial institutions. However, following its discussions on 17 November 2010, the Council for Economic and Financial Affairs (Ecofin Council) announced that it had been agreed that: the European Commission will pursue modernization of the definitions of the exempt services to achieve neutrality and consistency as regards the application of the exemptions; the European Commission will explore the possibilities to depart from the current right to opt for taxation; and at this stage, the Council will not undertake further work on the proposed exemption for the services of cost-sharing associations. 14. Proposal of 17 December 2010 for a Council Directive amending Directive 2006/112/EC on the common system of value added tax as regards the treatment of insurance and financial services, No /10, FISC 158, annexed to the Note from the Incoming Hungarian Presidency of 17 December 2010, No /10, FISC Proposal of 17 December 2010 for a Council Regulation laying down implementing measures for Directive 2006/112/EC on the common system of value added tax, as regards the treatment of insurance and financial services, No /10, FISC 159, annexed to the Note from the Incoming Hungarian Presidency of 17 December 2010, No /10 (FISC 160). 108 INTERNATIONAL VAT MONITOR MARCH/APRIL 2011 IBFD

5 Treatment of Outsourced Elements of Payment Transactions under EU VAT services by telephone or through the Internet, will be exempt from VAT, it should not be forgotten that the doctrine of ancillary services will not be affected by new VAT regime for financial services. Therefore, it seems likely that the services for which Everything Everywhere made the payment handling charge will also to be subject to VAT under the modernized definition of payment transactions. Transfers of a credit and debt position, as mentioned in the proposed Art. 135(1)(d) of the VAT Directive will also be exempt. However, under Art. 5 of the proposed Implementing Regulation, those transfers will, inter alia, not include debt recovery services. The latter provision would have the effect that the ECJ s judgments in MKG and AXA remain valid. In this respect, it should be noted that it has not yet been decided whether factoring can be exempt to the extent that it contains an element of credit Outsourcing In relation to outsourcing, the currently proposed Art. 135(1a) of the VAT Directive provides that any constituent element of an exempt financial service (subcontracted to a third party) is exempt from VAT if two conditions are met. Firstly, the service must be a constituent element which is a distinct whole and is specific to, and essential for, the supply of the exempt service. Secondly, that constituent element must entail a change in the legal and financial relationship between the parties, if the relevant exempt service is characterized by such a change. Both conditions are derived from the ECJ s judgment in SDC but, despite the efforts of the European Commission to explain the SDC criteria on the basis of a two-step approach, 17 they still lack clarity in many respects. Under the Commission s approach, outsourced services pass a first filter if they possess one or more of the genetic markers of an exempt service. They pass the second filter if they constitute a distinct whole and have the specific and essential characteristics of an exempt service. It had always been the intention to include examples of exempt outsourced elements of financial services in the Implementing Regulation. In 2010, the Presidency proposed to add an Annex II to the proposed Implementing Regulation 18 containing examples of services typically included in, and excluded from, the exemptions. However, as regards financial transfers within the meaning of the proposed Art. 135(1)(e) of the VAT Directive, the proposed Annex II only mentioned authorization and verification of payments as a typically exempt element. There must be other elements of payment transactions, such as processing, that also meet the SDC criteria and must also be exempt. 19 Unfortunately, in its most recent version, the proposed Implementing Regulation no longer has an Annex II containing clear examples of inclusions and exclusions. It would be very beneficial to businesses in the financial sector and for third-party service providers operating in the field of payment transactions if the Council would adopt a clear and binding list of items that are typically included in, and excluded from, the exemptions. Only then can clarity on the VAT treatment of outsourced elements of payment transactions be achieved. 5. Conclusion The two recent judgments of the ECJ in Axa and Everything Everywhere have regrettably not brought any clarity about the scope of the exemption for transactions concerning transfers and payments in the EU VAT system. The financial sector had hoped that the ECJ would have further clarified the scope of the exemption, but the ECJ s judgments have in fact not contributed anything in that respect. The ECJ s decisions in Axa and Everything Everywhere thus leave the financial sector with many unanswered questions on the VAT consequences of outsourcing elements of their financial services. Hopefully, some of these questions will be answered if and when the Council adopts the proposals of the European Commission for amendment of the VAT regime applicable to financial services and insurance transactions. 16. Note from the Incoming Hungarian Presidency of 17 December 2010, No /10 (FISC 160). 17. Background Paper requested by the Council Presidency of 5 March 2008, No. TAXUD/2414/08-EN, p Proposal of 31 August 2010 for a Council Regulation laying down implementing measures for Directive 2006/112/EC on the common system of value added tax, as regards the treatment of insurance and financial services, No /10, FISC Note from the Belgian Presidency of 31 August 2010, No /10 (FISC 90). 109

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