Advocate General Athanasios Rantos concluded, on Thursday 15 September, that the provision of the regulation implementing the VAT Directive providing that an online intermediary platform is, “in principle”, liable to pay VAT is valid (hereinafter Article 9a).
This opinion in case C-695/20 follow a request for a preliminary ruling from the First-tier Tribunal (Tax Chamber) in Great Britain on the appeal lodged by Fenix International Limited against the Commissioners for Her Majesty’s Revenue and Customs.
Fenix, the applicant, operates the Only Fans online platform and manages the collection and distribution of payments made by ‘fans’ to ‘creators’. Fenix is compensated by retaining 20% of these payments.
The firm invoiced and accounted for VAT during the relevant period only on the basis of this 20%.
However, the Commissioners for Her Majesty’s Revenue and Customs, by reference to Article 9a of Implementing Regulation (EU) No 282/2011 laying down implementing measures for Directive 2006/112/EC (the so-called “VAT Directive”) as inserted by Implementing Regulation (EU) No 1042/2013, took the view that the firm should have paid VAT on the basis of the totality of the payments made by ‘fans’.
Fenix appealed to the British First-tier Tribunal against the decision of the tax authorities. The company considered that Article 9a did not apply, that it was invalid, as its scope of application went beyond what is allowed by Article 397 of the VAT Directive (on which the two implementing regulations are based) and, furthermore, or in the alternative, that it did not fall within the scope of the presumption in Article 9a that an online intermediary is liable for VAT and/or challenged this presumption.
The Advocate General concluded that Article 9a was valid. This article does not contain any restrictions on its scope or extent. No category of service is therefore excluded from its scope. In accordance with European law, the article respects the essential general objectives pursued by the Directive. This provision is of a technical nature and is necessary or useful for the implementation of the relevant provision of the directive.
Furthermore, in the Advocate General’s view, Article 9a does not amend or supplement the directive: it clarifies the arrangements for liability in the field of the provision of electronic services.
The Advocate General therefore considers that the EU Council, in adopting Article 9a, has not exceeded the implementing powers conferred on it.
Link to the opinion: https://aeur.eu/f/33w (Original version in French by Émilie Vanderhulst)