HEALTH SERVICE EXECUTIVE NATIONAL FINANCIAL REGULATION VALUE-ADDED TAX NFR-16

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1 HEALTH SERVICE EXECUTIVE NATIONAL FINANCIAL REGULATION VALUE-ADDED TAX NFR-16

2 NFR-16 Value-Added Tax 16.1 Introduction on page VAT Registration on page Supply of Goods on page Supply of Services on page Intra-Community Supplies on page Acquisitions from other EU Member States on page Imports on page Amount on which VAT is chargeable on page VAT due and VAT deductible on page Accounting for VAT on page Reverse Charge for Construction Services on page Invoices, Credit Notes on page Records to be Kept on page Vat Rates on page Interest and Penalties on page Changes in Rates of VAT on page Duties & Responsibilities on page Local Procedures on page Training on page Reporting of Irregularities on page Audit on page Assistance /Further Information on page Effective Date on page Appendices on page 19 Ver /12/2011 Page 2 of 83

3 16.1. Introduction Value-Added Tax (VAT) is a tax on consumer spending. It is collected by VATregistered traders on their supplies of goods and services effected within the State for consideration to their customers. Each such trader in the chain of supply from manufacturer through to retailer charges VAT on his or her sales and is entitled to deduct from this amount the VAT paid on his or her purchases. The effect of offsetting VAT on purchases against VAT on sales is to impose the tax on the added value at each stage of production - hence Value-Added Tax. The final consumer, who is not registered for VAT, absorbs VAT as part of the purchase price. The following example illustrates how this works: As may be seen from the above example, the consumer pays a total of 605 for the finished product, of which 105 is VAT Taxable person and accountable person - Definitions A taxable person is any person who independently carries out any business in the State. VAT law provides that VAT is chargeable on the supply of goods and services effected within the State for consideration by a taxable person acting as such, other than in the course or furtherance of an exempted activity. A person who is required to charge VAT is referred to as an accountable person. An accountable person is, therefore, a taxable person (an individual, partnership, company etc.) who supplies taxable goods or services in the State and who is, or is required to be, registered for VAT. Persons who are involved in the taxable supply of property and persons whose annual turnover from supplies of taxable goods and services in the State, or the value of whose acquisitions of goods from other EU Member States, exceed or are likely to exceed certain limits are obliged to register for VAT. While persons whose turnover from taxable activities does not exceed these limits are not obliged to register, they may register for VAT if they so wish. Additionally, persons who are in receipt of Fourth Schedule, or cultural, artistic, entertainment or similar services are accountable persons. A sub-contractor not Ver /12/2011 Page 3 of 83

4 established in the State who provides construction services in the State to principal contractors will not be regarded as an accountable person with effect from 1 September 2008, but may apply to become one in order to claim repayment of input VAT. Section 117 Finance Act 2010 provides for the taxation from 1 July 2010 of the activities of public bodies (Departments of State, local authorities and bodies established by enactment) that, in general, are not activities engaged in by virtue of a right or power conferred on the public body by an enactment. Section 117 was introduced to address the European Court of Justice (ECJ) judgement in case C-554/07 Commission V Ireland. Public bodies are taxable when their treatment as non-taxable (in relation to activities carried out under a right or power conferred on the public body by an enactment) could lead to something more than negligible distortion of competition. Public bodies performing other activities or transactions are treated as if they were normal commercial entities in respect of those activities or transactions and are obliged to register and account for VAT when certain turnover thresholds are exceeded or are likely to be exceeded in any twelve- month period. The turnover thresholds are set out as follows: VAT registration is obligatory where certain turnover thresholds are exceeded or are likely to be exceeded in any twelve- month period The principal thresholds applicable are outlined in section below. The HSE s business of the provision of health services will not be affected by the ECJ judgment and will therefore continue to be exempt from VAT for this portion of its business. The provisions of Section 117 are in addition to the VAT obligations that currently apply to the HSE bodies. These include accounting for VAT on services received from EU and non-eu countries, accounting for VAT on the acquisition of goods worth more than 41,000 in a year from suppliers in other EU Member States and accounting for VAT on the receipt of constructions services as a principal contractor. Refer Procurement of goods and services by the State, local authorities and bodies established by statute on the Revenue website Exemptions A person who makes exempt supplies, comes within the scope of the term taxable person but this has no bearing on his/her VAT status. Goods and services of the kind listed in Appendix A are exempt from VAT and suppliers of such goods and services are not obliged, nor indeed are they entitled, to register for VAT unless they also make taxable supplies. These persons may be required to register and account for VAT in respect of intra-community acquisitions, Fourth Schedule services or goods and services received by them Non-taxable entities Such bodies are not considered to be engaged in economic activities. They are not obliged or entitled to register and account for VAT on income from supplies made by them and they must bear VAT on their purchases of goods and services. VAT law provides that State bodies engaged in the provision of facilities for taking part in sporting activities may be required to register for VAT in certain circumstances Registration Revenue will issue a VAT registration number to a person on being satisfied that the person is carrying on a taxable business in the State. Ver /12/2011 Page 4 of 83

5 Rates The standard rate of VAT is 21%. There is also a reduced rate of 13.5% and a zero rate. Further details on these rates are contained in the appendices to this Guide. A list of the rates applicable to a large range of goods and services is available on the Revenue website at Reverse charge/self-accounting VAT is normally charged and accounted for by the supplier of goods or services. However, in certain limited circumstances the recipient of goods or services, rather than the supplier, is obliged to account for the VAT due. This applies: on the intra-community acquisition of goods from another Member State, on receipt from abroad of Fourth Schedule services, valuation, repair or contract work carried out on movable goods in another State in certain circumstances, where goods are installed or assembled for certain designated persons in the State by a supplier who is not established in the State (see paragraph 3.2), intra-community transport and ancillary services supplied by a nonestablished person to an accountable person in the State, with effect from 1 September 2008, construction services supplied to a principal contractor by a sub-contractor, whether or not the sub-contractor is established in the State, on the receipt of gas through the natural gas distribution system, or electricity, from a person not established in the State by certain categories of persons in the State VAT returns A VAT-registered person normally accounts for VAT on a two-monthly basis (January/February, March/April etc). The return made on the form VAT 3 together with a payment for any VAT due should be furnished to the Collector- General on or before the 19th of the month following the end of the taxable period. Traders are encouraged to submit their VAT returns using the Revenue Online Service (ROS) (see Amount on which VAT is chargeable The amount on which VAT is chargeable is the total sum the person supplying the goods or services becomes entitled to receive, including all taxes, commissions, costs and charges whatsoever but not including the VAT chargeable in respect of the transaction Basis of accounting Registered persons normally account for VAT on the invoice ( sales ) basis. This means that they become liable for VAT by reference to invoices issued and sales made by them irrespective of whether payment has actually been received Right to deduct VAT Ver /12/2011 Page 5 of 83

6 In computing the amount of VAT payable in respect of a taxable period, a registered person may deduct the VAT charged on most goods and services which are used for the purposes of the taxable business. No deduction may be made, however, for non taxable entities. Non-established sub-contractors providing construction services that are subject to reverse charge may register for VAT if they wish to claim a refund Records to be kept A VAT-registered person must keep full and true records of all business transactions which affect his or her liability to VAT. The records must be kept up to date and must be sufficiently detailed to enable that person to accurately calculate liability or repayment and to enable the Revenue to check the calculation, if necessary. Records must normally be retained for six years from the date of the latest transactions to which they refer Trade between different EU Member States In the European Single Market, VAT is accounted for on sales of goods between traders in different EU Member States by a system of intra-community supplies and acquisitions of goods. The supplies are zero-rated in the EU Member State of origin and VAT is accounted for by the VAT-registered recipient in the EU Member State of destination Imports (non-eu) For VAT purposes imports are goods brought into Ireland from non-eu countries. As a general rule, imported goods are liable to VAT at the point of entry into the State, at the same rate as applies to the sale within the State of similar goods Appeals A person has the right to appeal against Section 22 estimates or Section 23 assessments or against a determination made by Revenue in relation to the rate of VAT chargeable and in relation to whether an activity is an exempt activity. A person also has the right of appeal in relation to charges made in accordance with regulations, for example, in connection with an application for deregistration, and in relation to all claims for repayment. Any question of fact or law may be brought before the Appeal Commissioners, and the taxpayer if dissatisfied with the decision of the Appeal Commissioners may have the appeal re-heard by the Circuit Court. Both the taxpayer and Revenue may appeal to the High Court on a point of law and from there to the Supreme Court. Because VAT is governed by EU law, the Appeal Commissioners or any of the courts may refer the case to the European Court of Justice (ECJ). Matters which may be appealed also include: a charge to tax in connection with the issue of an incorrect invoice or the issue of an invoice showing tax by a non-registered person, compulsory group registration, refusal to allow group registration and the cancellation of an existing group registration, a determination in relation to certain sports and leisure activities, a determination of open market value in relation to certain supplies between connected persons, the treatment of a person who allows supplies to be made on land owned, occupied or controlled by him/her, as jointly and severally liable with another person, a charge to tax in accordance with regulations, a claim for repayment of VAT, a refusal by Revenue to treat a person as an accountable person, Ver /12/2011 Page 6 of 83

7 a refusal by Revenue to accept that an expression of doubt is genuine Letter of expression of doubt VAT law provides that where a person is in doubt about the application of VAT law to a transaction, including the rate of VAT, he/she may lodge a letter of expression of doubt with Revenue. If the expression of doubt is accepted by Revenue as genuine, interest will not apply to any tax payable until the matter in doubt is resolved. In the event that Revenue refuses to accept that the expression of doubt is genuine, it is open to the taxpayer to have such refusal referred to the Appeal Commissioners. Please see VAT Information Leaflet Expression of Doubt Internal Review procedures Where a taxpayer wishes to seek a review of Revenue s handling of his/her tax affairs, or a decision made by a Revenue official, he/she can ask for an internal review to be carried out either: by a senior Revenue official who was not involved in the original decision, or jointly by an External Reviewer and the Revenue official mentioned above Revenue website The Revenue website carries a broad range of important information on all taxes and duties. All Revenue forms, guides, and information leaflets mentioned in this Guide are available on the Revenue website at Revenue on-line Service (ROS) ROS is a secure on-line service that enables taxpayers and individuals to interact electronically with Revenue. It offers taxpayers a quick, secure and cost effective method to manage their tax affairs online. ROS enables a taxpayer to view his/her own current position with Revenue for various taxes and levies, to file tax returns, including the VAT 3 returns and annual Return of Trading Details (RTD) and to make payments online in a variety of methods. Traders can register for ROS by accessing the ROS web-site through Donated medical equipment Statutory Instrument No. 58/92 provides for repayment of VAT suffered by a hospital or a donor on the purchase of new medical instruments and appliances (excluding means of transport) which are funded by voluntary donations. The VAT refund may be claimed by whomever suffers the tax i.e. the hospital or the donor, as appropriate, but not, of course, both. The principal conditions are that the instrument or appliance must: cost 25,390 or more (exclusive of VAT); be designed and manufactured for use solely in medical research or in diagnosis, prevention or treatment of illness; not have been part-funded by the State, and be the subject of a recommendation by the Minister for Health & Children that, having regard to the requirements of the health services in the State, a refund of the VAT would be appropriate. Repayment claim form VAT 72 refers Property transactions New VAT on Property rules were introduced in the Finance Act 2008 and are effective from 1 July The new rules introduce a simpler and more rational basis for applying VAT to property transactions. The main features are: The first supply of newly developed property is taxable for a period of five years from completion, Ver /12/2011 Page 7 of 83

8 The second and subsequent supply is taxable for a period of two years following occupation, There is an option to tax the supply of properties where the supply would otherwise be exempt, Lettings are exempt but where the letting is between unconnected parties there is an option to tax the rents. The option to tax also applies where the parties are connected but the lessee is entitled to deduct over 90% of the VAT charged on the rent, A Capital Goods Scheme which ensures that the amount of VAT deductible on acquisition or development of a property will correspond with the use of the property over a period of 20 years (10 years in the case of refurbishment work), There are transitional rules to ensure that properties that have been developed under the old system will pass into the new system with a minimum of disruption. The new system is described in detail in the VAT on Property Guide VAT Registration This Chapter deals with the rules relating to registration for VAT purposes. It describes who is obliged to register, who may or may not register, procedures for registration etc Accountable persons supplies taxable goods or services in the State, makes intra-community acquisitions of goods in the State, receives taxable Fourth Schedule services (i.e. listed in the Fourth Schedule to the VAT Act, (Appendix E to this Guide) from abroad, receives cultural, artistic, entertainment or similar services provided by a person not established in the State, is involved in property transactions in the State and is obliged to register for VAT in the State, receives goods for installation or assembly in the State from a person not established in the State, is, from 1 September 2008, in receipt, as a principal contractor, of construction services in the State from a sub-contractor including a nonestablished sub-contractor, is in receipt of supplies of gas through the natural gas distribution system or electricity from a person not established in the State. Accountable persons are obliged to comply with all necessary requirements arising from such registration, if any of the appropriate thresholds outlined below are exceeded, or are likely to be exceeded, in any twelve-month period Thresholds In the case of supplies in the State and intra-community acquisitions, registration is obligatory where certain turnover thresholds are exceeded or are likely to be exceeded in any twelve-month period. However, it should be noted that in relation to Distance Selling, the threshold is based on a calendar year. The principal thresholds applicable are as follows- 37,500 in the case of persons supplying services, Ver /12/2011 Page 8 of 83

9 37,500 for persons supplying goods liable at the 13.5% or 21% rates which they have manufactured or produced from zero-rated materials, 35,000 for persons making mail-order or distance sales into the State, 41,000 for persons making intra-community acquisitions, 75,000 for persons supplying goods, 75,000 for persons supplying both goods and services where 90% or more of the turnover is derived from supplies of goods, a non-established person supplying taxable goods or services in the State is obliged to register and account for VAT irrespective of the level of turnover, a non-eu business supplying electronic services to private consumers in the State is obliged to register and account for VAT irrespective of the level of turnover. However, an optional scheme is available to enable the supplier to register in one EU Member State, a nil threshold for persons in receipt of Fourth Schedule or cultural, artistic etc. services from abroad. An accountable person established in the State is not required to register for VAT if his or her turnover does not reach the appropriate threshold above. However, they may elect to register for VAT. There is no threshold for taxable property transactions. For further details please refer to the VAT on Property Guide Exempt persons and non-taxable entities acquiring goods within the EU Exempt persons and non-taxable entities who acquire or are likely to acquire more than c41,000 worth of goods from other Member States in any period of twelve months are obliged to register for VAT in respect of those intra- Community acquisitions. It should be further noted that registration by exempt and non-taxable persons for receipt of intra-community acquisitions does not give VAT deduction rights Fourth Schedule services Persons who receive from abroad for business purposes any of the taxable Fourth Schedule services are obliged to register for and pay VAT by reverse charge in respect of all such services. For VAT purposes, the recipient of such services is regarded as the supplier of the services to itself Supplies of natural gas through the natural gas distribution system or of electricity. Persons not established in the State who supply natural gas through the natural gas distribution system or electricity to a recipient in the State where that recipient is: an accountable person, a Department of State, a body established by Statute, are not required or entitled to register for VAT. VAT is accounted for by the recipient Cultural, artistic, entertainment or similar services Where a person not established in the State provides cultural, artistic, entertainment or similar services in the State, the promoter, agent or other person, who receives these services for business purposes, must register and account for VAT thereon by reverse charge. There is no turnover threshold for the receipt of these services. Ver /12/2011 Page 9 of 83

10 Goods for installation or assembly by a non-established supplier Where a non-established supplier supplies goods in the State which are installed or assembled, with or without a trial run, by or on behalf of that person and where the recipient of those goods in the State is a taxable person, the HSE, a Government Department, a local authority, or a body established by statute, then the non-established supplier is not entitled to register for VAT. In such circumstances the customer must register and account by reverse charge for the VAT due. Typical examples of qualifying supplies are the supply, installation and assembly of exhibition stands, movable shop counters, computer systems or electrical generators Construction operators With effect from 1 September 2008 sub-contractors not established in the State who provide construction services to principal contractors which are within the scope of Relevant Contracts Tax (RCT) (as defined in section 530 of the Taxes Consolidation Act 1997) are not required to register for VAT. VAT must be accounted for by the principal as if he or she had supplied the service. Such sub-contractors may, however, register for VAT in order to claim credit for input VAT incurred. VAT must also be accounted for by a principal contractor in respect of construction services received from a sub-contractor established in the State. However, a sub-contractor established in the State is obliged to register for VAT, subject to the normal rules. Supplies by established and nonestablished contractors to persons other than those in the construction industry will continue to be treated under the existing system. For example, a builder who builds an extension for a private individual or an electrician who installs a new alarm system in a shop will charge and account for VAT on the supply. The reverse charge will not apply to these supplies Two-Thirds rule With effect from 1 September 2008 the two-thirds rule does not apply where the reverse charge applies for construction services. It applies, however, to other circumstances involving the supply of movable or immovable goods under an agreement for the supply of services. Non-established suppliers supplying goods/services in Ireland Non-established suppliers supplying taxable goods or services in the State are generally obliged to register and account for Irish VAT. The turnover thresholds for VAT registration which apply to Irish suppliers do not apply and nonestablished suppliers must generally register regardless of the level of their turnover. Non-established taxable suppliers will be required to register where they: supply goods within the State; supply goods on board vessels, aircraft or trains leaving the State for another EU Member State; engage in distance selling of excisable goods to a person who is not a taxable person in the State; engage in the transport of goods or ancillary transport activities within the State (other than intra-community transport services supplied to VATregistered persons), and intra-community transport services beginning in the State for a customer who is not registered for VAT; engage in cultural, artistic, sporting, scientific, entertainment or similar services in the State; engage in the valuation of movable goods, including contract work within the State; Ver /12/2011 Page 10 of 83

11 engage (in the case of suppliers established outside the EU), in the hire of movable goods for effective use within the State; engage in the supply of telecommunications services or telephone cards, or radio or television broadcasting services from outside the EU to a private individual in the State in certain circumstances; engage in the supply of telecommunications services or of telephone cards from an establishment in the State to a private individual outside the EU; engage in the supply of electronic services from outside the EU to private individuals whose usual place of residence is in the State. These services include the following: website supply, web-hosting, distance maintenance of programmes and equipment, supply of software and the updating of it, supply of images, text and information, and making databases available, supply of music, films and games, including games of chance and gambling games and of political, cultural, artistic, sporting, scientific and entertainment broadcasts and events Who may not register in respect of supplies of goods or services? A person carrying on only exempt activities or a person carrying on activities otherwise than in the course or furtherance of business may not register for VAT. However, a person carrying on exempt activities may be required to register in respect of intra-community acquisitions of goods, Fourth Schedule services received from abroad and cultural, artistic, entertainment and similar services received from persons not established in the State. There is no provision for deductibility of VAT on purchases of goods and services by such persons. There are circumstances where the State, HSE, local authorities and bodies established by statute are required to register and account for VAT on received supplies including construction services by a sub-contractor, Fourth Schedule services, supplies of natural gas and electricity and goods received for installation or assembly by a non-established supplier Where a premises provider allows a mobile trader, not established in the State, to supply goods on the premises for a period of less than seven days, he or she must provide details to the local Revenue District, including the following information, not later than fourteen days before the trader intends to trade on the land: the name and address of the trader, the dates on which the trader intends to trade on the premises provider s land, and the address of the land Supply of Goods If these details are not provided the premises provider may be made jointly and severally liable for the VAT due by that mobile trader. This Chapter describes the various ways in which supplies of goods for VAT purposes are made, and outlines the VAT treatment appropriate to each type of supply Taxable supplies of goods Ver /12/2011 Page 11 of 83

12 A taxable supply of goods means the normal transfer of ownership of goods by one person to another and includes the supply of goods liable to VAT at the zero rate. It means: the transfer of ownership of goods by agreement, the sale of movable goods on a commission basis by an auctioneer or agent acting in his or her own name but on the instructions of another person, the handing over of goods under a hire-purchase contract, the handing over by a person to another person of immovable goods (property) which have been developed, the seizure of goods by a sheriff or other person acting under statutory authority, the application by an accountable person of movable goods to some private or exempt use, the appropriation by an accountable person of goods other than for the purposes of his/her business, the provision of electricity, gas and any form of power, heat, refrigeration or ventilation, with some exceptions, the transfer of goods from a business in the State by a taxable person to the territory of another EU Member State for the purposes of the business Place of supply of goods The place of supply of goods rules determine whether a supply is subject to VAT in the State. The basic rule is that supplies of goods in the State are subject to VAT in the State. However, problems can arise in the context of supplies that involve the movement of goods across frontiers. The following is a summary of the place of supply rules, with examples: Where goods are not dispatched or transported, the place of supply is deemed to be the place where the goods are at the time of their supply. Example 1 - A French tourist on a visit to Ireland buys a sweater from a retailer in the State. Irish VAT arises on the purchase, as the place of supply is where the goods are when the purchase takes place. Where goods are installed or assembled, the place of supply is the place where the goods are installed or assembled. Example 2 - A VAT-registered Irish company engages an EU-based company to supply and install a machine in its premises in the State. The place of supply is the State. There is no obligation on the non-established supplier to register for VAT in Ireland as the recipient is one of those classes of persons who must account for the output VAT arising on the supply. If the goods have been bought for the purposes of its taxable business, a simultaneous input credit may be taken by the buyer thus making the transaction VAT neutral. The HSE are not allowed to claim this input credit Deposits/Payments received in advance deemed to be supplies Where a deposit or payment on account or other payment is received by an accountable person before he or she has made or completed a supply of goods or services, a supply is deemed to have taken place at the time of the receipt of the payment to the value of such payment. Tax is chargeable on that deposit or payment. Where, however, a deposit is retained by a supplier in the event of cancellation of the whole transaction by the customer the supplier may reduce his or her liability for the period in which the deposit is forfeit by an amount equal to the amount accounted for on the deposit. There are a number of conditions for this to apply: the supply does not take place because the customer has cancelled it, Ver /12/2011 Page 12 of 83

13 the cancellation is recorded as such in the books of the supplier, the deposit is not refunded to the customer, and no other consideration, benefit or supply is provided to the customer by any person in lieu of that amount Services taxable at the rate of goods (the two-thirds rule) With the exception of contract work, a transaction which may appear to be the supply of a service, is nevertheless taxable as a supply of goods, if the VAT exclusive cost of the goods to the supplier exceeds two-thirds of the total charge to the customer excluding VAT. With effect from 1 September 2008, the twothirds rule will not apply in circumstances where a principal contractor self accounts for VAT in respect of construction services received from subcontractors Auction and agency Sales The sale of movable goods by agents or auctioneers who conclude agreements in their own name but on the instructions of another person are treated as supplies of goods, at the appropriate rates, at the time that the agents or auctioneers make the sale. Please see VAT Information Leaflet Auctioneering Supply of Services This Chapter describes the various categories of services supplied for VAT purposes and outlines the VAT treatment appropriate to each type of supply What is a service? For VAT purposes a service is any commercial activity other than a supply of goods. Typical services include the services of caterers, mechanics, plumbers, accountants, solicitors, consultants, etc. and the hiring (other than hirepurchase) or leasing of goods. Electronically supplied services, including digitised goods delivered online and the physical supply of customised software are supplies of services for VAT purposes. Services also include refraining from doing something and the granting and surrendering of a right. Contract work, that is the handing over by a contractor to a customer of movable goods made or assembled by him or her from goods entrusted to him or her by the customer, is also regarded as a service Services taxable at the rate of goods (the two-thirds rule) A transaction which may appear to be a supply of a service is nevertheless taxable as a supply of goods if the value of the goods, that is their cost excluding VAT, to the service contractor used in carrying out the work exceeds two-thirds of the total charge, exclusive of VAT. For example, where the cost to the repairer of materials used in the repair of a washing machine is c120 exclusive of VAT, and the total charge for the repair work is c150, the 21% rate applicable to the materials applies, rather than the 13.5% rate which normally applies to repair services. Ver /12/2011 Page 13 of 83

14 Example 3 Ver /12/2011 Page 14 of 83

15 Example 4 In each example above the gross tax payable by the contractor is shown. The contractor is of course entitled to deduct the tax suffered on the materials and pays the net amount to Revenue in his / her next return. It should be noted that the repair and maintenance of motor vehicles and agricultural machinery is not subject to the two-thirds rule. It should also be noted that from 1 September 2008, when principal contractors account for VAT on the receipt of construction services from sub-contractors, the two-thirds rule will not apply for the purposes of these specific supplies in these circumstances. The rule will continue to operate for other supplies Place of supply of services 1. General Rules The existing general rule for the place of taxation of intra-community supplies of services is that services are taxable in the Member State where the supplier is established. From 1 January 2010, there are two general place of supply rules, depending on whether the recipient is a business or a consumer: For supplies of Business to Business (B2B) services, the place of taxation is the place where the recipient is established (reverse charge). For supplies of Business to Consumer (B2C) services, the place of taxation is where the supplier is established. Unless covered by an exception (see Paragraph below) the position is as follows: Service suppliers in the State must not charge VAT when supplying services to a business customer established outside Ireland. Service suppliers in the State continue to charge VAT to non-business customers outside Ireland. However, many services (see paragraph below on B2C supplies to customers outside the EU) supplied from Ireland to nonbusiness customers outside the EU will not be subject to Irish VAT. Ver /12/2011 Page 15 of 83

16 Businesses that receive services from a supplier outside Ireland will not be charged VAT by the supplier of those services, but the recipient will be required to account for Irish VAT unless the services concerned are exempt in Ireland (and the business has notified its supplier that such services are exempt from Irish VAT). The new place of supply rules will result in little change for many suppliers and recipients of intra-community services since most of the significant B2B services are already taxed where received on a reverse charge basis i.e. the current Fourth Schedule services. Table 2.1 A summary of the new Place of Supply rules (unless subject to exceptions or effective use and enjoyment provisions) are: Country of establishment of supplier Country in which customer established Status of Customer Place of supply Person liable to account for Irish VAT Ireland Other EU State Business Other EU State No Irish VAT Ireland Other EU State Private Ireland Supplier Ireland Outside EU Business Outside EU No Irish VAT Ireland Outside EU Private Other EU State Ireland Business Ireland Depends on the nature of the Service (see Paragraph 3.5 B2C supplies to customers outside the EU) Supplier (if VAT occurs) Business Customer Other EU State Ireland Private Other EU State No Irish VAT Outside EU Ireland Business Ireland Outside EU Ireland Private Depends on the nature of the Service Business Customer Depends on the nature of the Service if taxable in the State the supplier 2 Exceptions to the General Rules There are a number of exceptions to the general rules in 2.1 that more closely link the place of supply to where the service is performed. Unless covered by a reverse charge arrangement, the supplier will be required to register and account for VAT in the Member State of supply. The following table summarises the exceptions and sets out the current place of supply rule and the rule that will apply from 1 January 2010 onwards. Ver /12/2011 Page 16 of 83

17 Table 2.2 Exceptions to Value Added Tax place of supply rules and the changes that take effect from 1st January 2010 Current Rule Rule from 1/1/2010 Supply of services connected with immovable goods Passenger Transport Services (B2B and B2C) Place of supply is where the goods are located Place of supply is where the passenger transport takes place. Intra-Community Place of supply Transport of Goods is the place of B2C departure. Place of supply Intra-Community is the place Transport of Goods where the B2B customer is established Cultural, artistic, sporting, scientific, educational and entertainment or similar services Ancillary transport services, valuations/work on movable property Restaurant and Catering Services No change to the place of supply. A specific reverse charge provision is being introduced (see Paragraph 2.8 Supply of services connected with immovable goods) whereby when the service provider is outside Ireland and the work is carried out in Ireland VAT is accounted for by the Irish business recipient on a reverse charge basis. No Change No Change No Change i.e. the general B2B rule Place of supply is where the services are No change in 2010 physically carried out. Place of supply is where the No change for B2C. General rule with services are reverse charge will apply for B2B physically carried out. Place of supply is where the supplier is established. Restaurant and Place of supply catering services is where the for consumption on supplier is board ships, planes established and trains Hiring out of means of Transport Place of supply is where the supplier is established. (See Paragraph 2.5 Hiring-out of means of transport) Place of Supply is where the services are physically carried out.(see Paragraph 2.3 Restaurant and Catering Services} Place of supply is point of departure. (See Paragraph 2.4 Restaurant and catering services for consumption on board ships, planes and trains) For short-term hiring-out of means of transport, the place of supply is where the transport is put at the disposal of the customer. For long term hiring out of means of transport, the place of supply follows the general rules. Ver /12/2011 Page 17 of 83

18 3 Restaurant and Catering Services The new place of supply rules for restaurant and catering services is that the place of supply is in the Member State where the services are physically carried out. The place of supply rule applies to supplies to both business and nonbusiness customers. For example, a catering supplier from another Member State who supplies catering services in this State will be required to register and account for Irish VAT on those catering services in the State. Similarly, a catering supplier in the State, who provides catering services in another Member State will be required to register and account for those services in that State. 4 Restaurant and catering services for consumption on board ships, planes and trains The place of supply of restaurant and catering services for consumption on board ships, planes and trains during part of a transport within the EU will be the place of departure. This mirrors the rules for supplies of goods for consumption on board. 5 Hiring-out of means of transport The place of supply for the short-term hiring of a means of transport is where the means of transport is actually put at the disposal of the customer. Short-term hire means up to 30 days for means of transport such as cars, vans etc. and up to 90 days for vessels. A means of transport will be considered as "actually put at the disposal of the customer" at the place where the means of transport is situated when the customer actually takes physical possession of it. Legal control (signature of contract, taking possession of the keys) is not in itself sufficient to determine the place where the means of transport was put at the disposal of the customer. The place of supply of long-term hiring out of a means of transport for both B2B and B2C supplies are covered by the general rules. There are circumstances where short-term hiring can become long-term hiring resulting in a change in taxable status. These are set out in Appendix 2. Further changes to the place of supply rules for the hiring of a means of transport come into effect from 1 January Intra-Community Transport of Goods The general rule will apply to B2B intra-community transport of goods i.e. the place of supply is where the customer is established. There is no change to B2C intra-community transport of goods. The place of supply is the place of departure. 7 Intermediary Services The place of supply of services to non-taxable persons by an intermediary acting in the name and on behalf of another person is the place where the underlying transaction is supplied. There is no change to this rule. The place of supply of services to taxable persons by an intermediary acting in the name and on behalf of another person is the place where that taxable person is established. This rule has changed the place of supply from where the underlying transaction is supplied to where the taxable person, who is in receipt Ver /12/2011 Page 18 of 83

19 of that supply, is established. For further information on intermediary services for travel agents see Travel Agent's Margin Scheme. 8 Supply of services connected with immovable goods The place of supply for services connected with immovable goods is the place where the goods are located. For the purposes of the Regulations, a supply of services connected with immovable goods includes the following: 1. a supply of services by experts or estate agents; 2. a provision of accommodation in a hotel or guesthouse or in an establishment having a similar function, or in a holiday camp or a site developed for use as a camping site; 3. a supply of services involving the preparation and co-ordination of construction work (including a supply of services of architects and of persons who provide on-site supervision). Specific arrangements for a reverse charge have been put in place in regard to theses services, with the exception of holiday accommodation and construction services (i.e. (b) and (c) above). From 1 January 2010, where a customer established in the State receives such services in connection with immovable goods in the State from a supplier who is established outside the State, the business customer is required to account for Irish VAT on these services. Note 1: There are no changes to the existing arrangements for reverse charge that apply to principal contractors and subcontractors involved in construction operations to which Relevant Contracts Tax applies (see Construction Services New VAT rules for Principal Contractors and Sub-contractors 9 Obligations of Irish suppliers 9.1 Identification of a Business for a B2B supply It will be a matter of fact whether the customer is a business or not. In the case of supplies to a business in another Member State, the supplier must obtain the customer s VAT number, insert it on the invoice and retain records of the transaction. The supplier will enter the details of all supplies of services to businesses in other Member States on his/her recapitulative VIES statement of intra-community supplies. The place of supply rules recognise that in a small number of cases, the recipient of the service may not yet have received a VAT number from the tax authority in the relevant Member State while the recipient is clearly engaged in an economic activity. In these cases, the recipient business will be required to provide an alternative tax identification number or a letter from the tax authority in that Member State confirming that it is a business. However, service suppliers are required to show details of the services supplied together with the correct VAT number of the recipient on their recapitulative VIES statement this may mean in practice that the details are entered on a recapitulative statement that covers a period subsequent to the period during which the supply of the service was made. Given that the correct accounting for VAT lies with the recipient of a B2B service there may be a temptation for a supplier to classify B2C services as B2B. If the status of a customer purchasing services from a trader in the State has been wrongly determined as B2B when it should have been taxed as B2C, and no Ver /12/2011 Page 19 of 83

20 VAT was charged, the supplier will be liable to pay the VAT at the appropriate rate together with interest and penalties in the event of a Revenue audit. When it comes to ascertaining the status of the customer, the supplier will be assumed to have acted in good faith, and therefore should not be liable for the VAT, when he/she has: 1. established whether the customer is a taxable person via the VAT number communicated or through such other proof presented to show that the customer is a taxable person or a non-taxable legal person (see Paragraph 3.3 Supplies of services to non-taxable legal persons) for VAT purposes, and 2. obtained confirmation of the validity of the VAT number of the customer and carried out a reasonable level of verification via existing security procedures. 9.2 Supplies of services used in whole or in part for non-business use Where a service is intended in part for the personal use of the customer (or staff) and in part for professional use, the supply of that service will be treated as B2B. The assessment of the purpose to which each service will be put, which is necessary to determine the place of supply of that service, will take into account only the circumstances existing at the time the supply is made. If there are reasonable indications that the service supplied is intended for the customer s own personal use or that of the staff of a business, who has communicated a VAT number or provided other proof to be a taxable person, the supplier should seek a self-declaration from the customer on the planned purpose of the acquired service. In this case, reasonable indications would be that the nature of the supply is not consistent with the nature of the business. 9.3 Supplies of services to non-taxable legal persons Non-taxable legal persons, public bodies, schools, political parties etc. who have been registered for VAT are considered to be a business for the purposes of the place of supply rules. These bodies are required to produce their VAT numbers to the supplier. 9.4 B2B supplies to customers outside the EU The general rule will apply for B2B supplies to customers outside the EU e.g. an electronic supply of software to a company in Turkey will not be subject to VAT, as the place of supply of that service is Turkey. In addition to proof as to the place of establishment of the customer outside the Community, the supplier must also furnish proof that the customer is a taxable person. To that end, the supplier must obtain sufficient evidence from his customer to show that the customer is a taxable person. This evidence may consist of the VAT number, or a similar number which is used to identify the business, allocated by the tax authority in the country of establishment. The evidence of the VAT number may be supplemented by other relevant information, including details obtained from the customer's competent tax authorities which confirm that the customer is a taxable person, the customer's order form containing his/her business address and trade registration number, and/or a printout of the customer's website, to confirm that the customer is conducting an economic activity. Ver /12/2011 Page 20 of 83

21 9.5 B2C supplies to customers outside the EU In respect of B2C supplies, the nature of the service will determine whether it is taxed under the general rule or is not subject to VAT. No VAT will be charged by the service provider on the following services supplied to non-business customers established outside the EU (unless the place of supply of the service is the State e.g. services connected with immovable goods): 1. transfers and assignments of copyrights, patents, licences, trade marks and similar rights; 2. advertising services; 3. the services of consultants, engineers, consultancy firms, lawyers, accountants and other similar services, as well as data processing and the provision of information; 4. obligations to refrain from pursuing or exercising, in whole or in part, a business activity or a right; 5. banking, financial and insurance transactions including reinsurance, with the exception of the hire of safes; 6. the supply of staff; 7. the hiring out of movable tangible property, with the exception of all means of transport; 8. the provision of access to, and of transport or transmission through, natural gas and electricity distribution systems and the provision of other services directly linked thereto; 9. telecommunications services; 10. radio and television broadcasting services; 11. electronically supplied services, in particular those referred to in Annex II of the VAT Directive (2006/112/EC). For these services to be supplied free of VAT, the supplier will need to provide proof that the customer is established outside the Community. The supplier must obtain the necessary information from the customer and verify the accuracy of that information via existing security procedures, such as credit card preauthorisation checks which verify that an address is associated with a card number. If a B2C supply made from the State is wrongly identified as being made to a person outside the Community when it was an intra-community supply, the supplier may be liable for Irish VAT and may incur interest and penalties in the event of a Revenue audit. Services not included in the list above, which are supplied to a non-business customer outside the EU are subject to Irish VAT at the appropriate rate. 9.6 Invoicing Where the service is supplied to a VAT registered customer in another Member State, the supplier must ascertain the VAT Number of the customer and that number, together with an indication that the reverse charge applies, must be included on the supplier s invoice, along with the supplier's own VAT Number and details of the transaction. It is possible to verify the format of a VAT Number at the EU Commission website or whether a VAT Number is appropriate to a particular trader by contacting the VIMA Office at Ver /12/2011 Page 21 of 83

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