Worldwide Tax News
CJEU Holds Third Country Mobile Phone Service Provider Subject to VAT for Roaming Services in Austria
On 15 April 2021, the Court of Justice of the European Union (CJEU) issued a judgment concerning whether an EU Member State may charge VAT on a mobile phone service provider in a third (non-EU) country when non-EU customers use the service while temporarily in the Member State (i.e., roaming services).
The case involved proceedings between SK Telecom Co. Ltd and the Tax Office of the City of Graz, Austria concerning the refund of input VAT paid by SK Telecom in relation to a supply of telecommunications services for the 2011 tax year. SK Telecom is a company established in South Korea, which, in 2011, supplied mobile phone services to its customers, who were also established, had their permanent address, or usually resided in South Korea, by way of roaming services allowing the use of the Austrian mobile communications network. To that end, an Austrian mobile communications network operator made its network available to SK Telecom in exchange for the payment of a user fee plus Austrian VAT which amounts to 20%. SK Telecom, for its part, invoiced its customers roaming charges for using the Austrian mobile communications network during their temporary stays on Austrian territory.
SK Telecom applied to the Tax Office for a refund of the VAT invoiced to it by the Austrian mobile communications network operator for 2011, pursuant to the simplified refund procedure provided for by Article I of the Refund Regulation. However, the Tax Office rejected that application on the ground that the roaming charges invoiced to customers of SK Telecom were taxable in Austria, pursuant to the Transfer Regulation, which is based on Article 59a of the VAT Directive, since the telecommunications services supplied were not subject, in the third country, to a tax which is comparable to the turnover tax provided for by the national law. Thus, according to the Tax Office, in so far as SK Telecom had carried out taxable transactions in Austria, the VAT it had paid could not be refunded in the context of that procedure.
The action brought by SK Telecom against the decision of the Tax Office was dismissed and was subsequently heard by the Federal Finance Court, which granted SK Telecom's request for a refund of the VAT. In that court's view, it follows from Articles 59a and 59b of the VAT Directive that Member States may consider the place of supply of telecommunications services to be situated within their territory only as regards those services which are supplied to non-taxable persons who are established, have their permanent address, or usually reside within the European Union. The fact that SK Telecom allowed its customers established in a third country to make phone calls in Austria by using the Austrian mobile communications network did not constitute a taxable transaction within the national territory, since the place of supply of the services concerned was situated within the third country in question.
The decision of the Federal Finance Court was appealed by the Tax Office to the Supreme Administrative Court, which found that where a person who is not an entrepreneur and who is established, has his or her permanent address or usually resides outside the European Union uses, on Austrian territory, telecommunications services supplied by a company established in a third country, the place of supply of those services is transferred to Austria, pursuant to the Transfer Regulation, and therefore subject to VAT in Austria. The Supreme Administrative Court then referred the case back to the Federal Finance Court, which remained unsure about the compatibility with EU law and decided to stay the proceedings and to refer the following questions to CJEU for a preliminary ruling:
- Is (point (b) of the first paragraph) of Article 59a of (the VAT Directive) to be interpreted as meaning that the use of roaming services in a Member State in the form of access to the national mobile telephone network for the purpose of establishing incoming and outgoing connections by a "non-taxable end customer" temporarily staying in that Member State constitutes "use and enjoyment" in that Member State which justifies the transfer of the place of supply from the third country to that Member State, even though neither the mobile telephone operator providing the services nor the end customer are established in (EU) territory and the end customer neither has his or her permanent address nor usually resides within the territory of the (European Union)?
- Is (point (b) of the first paragraph) of Article 59a of (the VAT Directive) to be interpreted as meaning that the place of supply of telecommunications services as described in Question 1, which are outside the (European Union) according to Article 59 of (that directive), may be transferred to the territory of a Member State even though neither the mobile telephone operator providing the services nor the end customer are established in (EU) territory and the end customer neither has his or her permanent address nor usually resides within the territory of the (European Union), simply because the telecommunications services in the third country are not subject to a tax comparable to VAT under EU law?'
In its judgment, the CJEU found, firstly, that the taxation of all telecommunications services consumed within the European Union reflects the intention of the EU legislature to prevent distortion of competition. Secondly, the CJEU found that the possible cases of double taxation, non-taxation, or distortion of competition are to be assessed by reference to the tax treatment of the services concerned in the Member States, without it being necessary to take account of the tax regime to which those services are subject in the third country concerned. Further, a solution contrary to this would have the effect of rendering the application of the EU VAT rules dependent on the third country's domestic tax law, which cannot be presumed to be the intention of the EU legislature. In particular, the fact that a service may be taxed in a third country under the national rules of that country does not prevent a Member State from taxing that service if it is effectively used and enjoyed on its territory. Based on this, the CJEU ruled that:
The first paragraph of Article 59a of the VAT Directive must be interpreted as meaning that roaming services supplied by a mobile phone operator established in a third country to its customers who are also established, have their permanent address or usually reside in that third country, allowing them to use the national mobile communications network of the Member State in which they are temporarily staying, must be considered to be 'effectively used and enjoyed' within the territory of that Member State, for the purposes of that provision, so that that Member State may consider the place of supply of those roaming services to be situated within its territory where, regardless of the tax treatment to which those services are subject under the domestic tax law of that third country, the exercise of such an option has the effect of preventing the non-taxation of those services within the European Union.04-19-2021
North Macedonia's Ministry of Finance has announced the launch of a new Tax Compliance Calendar tool that contains all envisaged changes in the tax regulations to be undertaken by the end of the year. The release also provides that a minimum 6-month postponement period will be provided between the adoption of respective laws and the in-force date of the changes.
Tax Compliance Calendar – new MoF's tool for increased transparency and certainty of the business environment
12th April 2021, Skopje – Ministry of Finance announced Tax Compliance Calendar on its website, a new tool on transparency and increased certainty of the business climate in the country. All envisaged changes in the tax regulations, to be undertaken by the end of the year, are contained in the Calendar. The goal is to inform the business community, as well as the general public, for they to be able to plan their activities more efficiently ad more effectively throughout the year.
The new tool is geared towards meeting the requests of the Chamber of Commerce of North Macedonia to set a Tax Calendar, i.e. to set a grace period from the adoption of the tax regulation till its application. Application of the laws, regulating the tax area, to be adopted in the course of the year will be postponed for at least 6-month period between the adoption of the respective laws by the Government and their application. Thus, the laws, to be adopted during the year, will come into force starting 1st January the following year or, optionally, on 1st June in the course of the following year, even earlier in exceptional cases should it be a matter of tax exemptions or should it be necessary due to any reason, however, under a prior determined, transparent and inclusive process. Thus, companies can more easily prepare their financial plans.
Amendments to 15 laws and bylaws, to take place in the course of the year, are announced in the Tax Compliance Calendar. Among them is the amendment to the Law on Value Added Tax, aimed at further harmonization with the EU VAT Directive as regards determining the place of supply of services, introduction of the term "tax representative", providing voluntary registration for VAT purposes throughout the whole year and analysis for the purpose of increasing the mandatory VAT registration threshold. Amendments to the Corporate Income Tax Law are also envisaged, geared towards increasing the amount of vacation allowance treated as recognized expenditure for tax purposes, analysis for precise regulating of the manner of tax loss carry forward and simplifying certain procedures when writing-off intangible and tangible assets.04-19-2021
Malta has published Legal Notice 132 of 2021 in the Official Gazette, which contains the COVID-19 Temporary Support Measures (Amendment) Regulations, 2021. The original COVID-19 Temporary Support Measures Regulations, 2020 were issued through Legal Notice 345 of 2020, and provided that where the Maltese Enterprise Corporation (MEC) is satisfied that eligible undertakings require support to sustain, preserve, and regenerate their economic activity, the MEC may provide assistance (tax credits) in any form allowed by the Malta Enterprise Act and in accordance with the EU Temporary Framework for State aid measures in response to COVID-19. In this respect, it is provided that:
- An undertaking benefiting from tax credits in terms of these regulations and the respective guidelines shall be entitled to deduct from the amount of income tax which is due on its chargeable income derived from its trade or business in the years of assessment following the award of the benefit an amount equivalent to the tax credit awarded;
- An undertaking that in any year of assessment does not utilize any tax credit awarded or deducts a value from the amount of income tax which is due on its chargeable income derived from its trade or business that is less than the tax credit awarded shall carry forward the unutilized tax credit for the following years of assessment and so on for subsequent years; and
- Tax credits awarded in terms of these regulations and the respective guidelines shall not give rise to a right to a refund of tax.
With the COVID-19 Temporary Support Measures (Amendment) Regulations, 2021, the deadline to submit applications for assistance is extended to 30 June 2021 (previously 31 December 2020).04-19-2021
The OECD has issued a release announcing the appointment of Fabrizia Lapecorella as the next Chair of the Committee on Fiscal Affairs.
Italy's Fabrizia Lapecorella appointed next Chair of OECD's Committee on Fiscal Affairs
16/04/2021 – The OECD's Committee on Fiscal Affairs (CFA) has designated Ms. Fabrizia Lapecorella, Director General of Finance of the Italian Ministry of Economy and Finance, as the next Chair of the Committee beginning on 1 January 2022. Ms. Lapecorella will take over from Mr. Martin Kreienbaum of Germany after his 5 year term ends on 31 December 2021. Ms. Lapecorella will be the second female Chair of the Committee since it was created in 1971 and the second Italian to hold this position.
Ms. Lapecorella has served as Italy's Director General of Finance since June 2008, and has held this position longer than any of her predecessors over the last 20 years. As Director General of Finance, she is responsible for tax policy, domestic European and international, the governance of the Tax Agencies, the coordination of the IT infrastructure serving the whole Tax Administration, and the administrative services for the Tax Judicial system. Prior to this role, Ms. Lapecorella held various positions at the Italian Ministry of Economy and Finance. As a member of the CFA's Bureau since 2012 and current Deputy Chair of the CFA since 2017, and as a member of the Steering Group of the OECD/G20 Inclusive Framework on BEPS since 2016, Ms. Lapecorella brings a wide understanding and experience in the full range of tax issues covered by the Committee.
"I am very pleased that the members have selected Fabrizia Lapecorella to lead the CFA", said Mr. Martin Kreienbaum, current Chair of the CFA and Director General of International Taxation for the German Federal Ministry of Finance. "She is well known to the Committee and brings a wealth of experience in tax policy and is well-versed in both the technical and political dimensions. I look forward to working with her over the remainder of my term to ensure a smooth transition," he added.
The Committee on Fiscal Affairs is the main forum for the OECD's discussions on taxation, covering both international and domestic tax issues and tax policy and administration. As the key global body for setting international tax standards, the CFA builds on strong relationships with OECD members and the engagement of a large number of non-OECD, G20 and developing countries on an equal footing. Importantly, the CFA's membership was expanded in 2016 with the creation of the Inclusive Framework on BEPS, which currently has 139 members.
Ms. Lapecorella is a professor of Public Finance since 2004. She holds a degree in Economics from the University of Bari, Italy, as well as a Certificate and a PhD in Economics from the University of York, UK.04-19-2021
UAE Publishes New Public Clarification on Extended Temporary Zero-rating of Certain Medical Equipment
The UAE Federal Tax Authority (FTA) has issued Public Clarification VATP025 to clarify the temporary zero-rating of certain medical equipment with effect from 1 September 2020, which replaces Public Clarification VATP023 on the matter.
The main points of the new public clarification are in line with prior public clarification, including that zero-rating is provided from 1 September 2020 for medical face masks, half filtered face masks, non-Medical "community" face masks made from textile, single-use gloves, and Chemical disinfectants and antiseptics intended for use on the human body. However, the key change is that zero-rating is now provided until 31 December 2021 in accordance with Cabinet Decision No. 15/3 O of 2021 (previously provided until 28 February 2021).04-19-2021
On 15 April 2021, the Colombian government submitted its proposed Sustainable Solidarity bill in Congress, which contains measures meant to increase revenue. Some of the main measures include:
- Measures to promote employment, including an exemption for employers from the payment of health and pension contributions for certain newly employed persons, including those under the age of 28 for their first job, those that have reached pension age but have not yet received payment from the pension system, those with certain disabilities, and women over the age of 40 that have not been employed in the past 12 months;
- Revisions to the excluded and exempt supplies for VAT purposes, including mainly foodstuffs, medicinal products, agricultural inputs, as well as services including health services, education services, and various others;
- New annual individual income tax brackets/rates are as follows based on the tax value unit (Unidad de Valor Tributario - UVT):
- for the 2022 tax year:
- UVT 0 to 800 - 0%
- UVT 800 to 950 - 10%
- UVT 950 to 1,500 - 20%
- UVT 1,500 to 2,700 - 28%
- UVT 2,700 to 5,000 - 33%
- UVT 5,000 to 10,500 - 37%
- UVT 10,500 and above - 41%
- from the 2023 tax year:
- UVT 0 to 560 - 0%
- UVT 560 to 900 - 10%
- UVT 900 to 1,400 - 20%
- UVT 1,400 to 2,000 - 28%
- UVT 2,000 to 4,000 - 33%
- UVT 4,000 to 10,000 - 37%
- UVT 10,000 and above - 41%
- for the 2022 tax year:
- Changes in dividend income taxation for individuals, with the following brackets/rates:
- UVT 0 to 800 - 0%
- UVT 800 and above - 15%
- New monthly withholding tax brackets/rates for individuals for employment and certain other income:
- for the 2022 tax year:
- UVT 0 to 60 - 0%
- UVT 60 to 70 - 10%
- UVT 70 to 150 - 20%
- UVT 150 to 220 - 28%
- UVT 220 to 420 - 33%
- UVT 420 to 1,050 - 37%
- UVT 1,050 and above - 41%
- from the 2023 tax year:
- UVT 0 to 39 - 0%
- UVT 39 to 70 - 10%
- UVT 70 to 132 - 20%
- UVT 132 to 167 - 28%
- UVT 167 to 333 - 33%
- UVT 333 to 833 - 37%
- UVT 833 and above - 41%
- for the 2022 tax year:
- New income tax brackets/rates for legal persons from 2022:
- UVT 0 to 13,770 - 24%
- UVT 13,770 and above - 30%
- A temporary 3% surcharge for legal persons for 2022 and 2023, which will need to be paid in advance in two installments based on the previous year's taxable income and results in the following total rates:
- UVT 0 to 13,770 - 27% (including surcharge)
- UVT 13,770 and above - 33% (including surcharge)
- A temporary solidarity tax on wealth imposed in 2022 and 2023 on individuals, including non-resident individuals, as well as foreign companies and entities that do not declare income tax in Colombia but own property in Colombia, which will generally be levied on net assets held as on 1 January 2022 and 1 January 2023 at the following rates depending on asset value:
- UVT 0 to 134,000 - 0%
- UVT 134,000 to 402,000 - 1%
- UVT 402,000 and above - 2%
- A temporary solidarity tax on high income from 1 July 2021 to 31 December 2021 that is levied at a rate of 10% on natural persons receiving monthly income payments of COP 10 million or more from employment, consideration for services, and certain others; and
- A supplementary standardization (regularization) tax at a rate of 17% for omitted assets or non-existent liabilities as on 1 January 2022, which may be reduced by 50% in relation to foreign assets that are effectively repatriated by 31 December 2022 and reinvested in Colombia.
Note that both temporary solidarity taxes would be deductible from income tax, while the standardization tax would not. For the solidarity tax on high income in particular, it is provided that the tax would be allowed to be taken as a deduction from income tax due in 2021 and subsequent years until deducting 100% of the amount of the temporary solidarity tax paid, with 50% of the amount paid allowed to be deducted for 2021.04-19-2021
UK HM Treasury Publishes Explanatory Notes on Amendments Regarding Hybrid and Other Mismatches in Finance Bill 2021
UK HM Treasury published Explanatory Notes on 15 April 2021 concerning amendments tabled for the Committee of the Whole House of Finance Bill 2021 (Finance (No. 2) Bill). This includes amendments regarding hybrid and other mismatches as follows:
Amendments 17 to 42 to Clause 36 and Schedule 7: Hybrid and other mismatches
1. These amendments to Clause 36 and Schedule 7 follow engagement with stakeholders since the publication of Finance (No. 2) Bill and will ensure the changes in this Bill have the intended effect, whilst also removing potential unintended consequences of the legislation
Details of the amendments
2. removes the amendment at Paragraph 2 to Schedule 7 of the Finance Bill 2021 which was to be made in relation to the definition of "hybrid entity" and "investor" at section 259BE of Tax (International and Other Provisions) Act ("TIOPA") 2010. The deletion follows stakeholder engagement in which it became clear that the existing draft had unintended consequences. A revised provision dealing with the underlying issue is intended to be included in the next Finance Bill, with the same effective date.
3. is relevant to Paragraph 6 of Schedule 7 and introduces replacement wording for new subsection 259NEF(3) TIOPA 2010 which make a minor clarification to the corporate rescue conditions outlined in that subsection.
4. alter the order of wording in new subsection 259EC(7)(a) TIOPA 2010, introduced by Paragraph 11 of Schedule 7, for readability.
5. all remove the words "or body" from text introduced by Paragraph 11 of Schedule 7 which provides for new subsections to section 259EC TIOPA 2010. The words "or body" are being removed to ensure consistency with existing provisions within Part 6A TIOPA 2010.
6. introduces a , which follows from the introduction of other new subsections to 259EC TIOPA made by Paragraph 11 of Schedule 7. imports existing subsection 259B(5) of TIOPA 2010 into the new subsection 259EC(7)(b) to determine residence where no concept of tax residence exists.
7. removes the words "or body" from new subsection 259EC(10) TIOPA 2010, which was introduced by Paragraph 11 to Schedule 7, to ensure consistency with existing provisions within Part 6A of TIOPA 2010.
8. alter the order of wording in new subsection 259ICA(2)(a) TIOPA 2010, introduced by Paragraph 13 of Schedule 7, for readability.
9. all remove the words "or body" from text introduced by Paragraph 13 of Schedule 7 which provides for the insertion of new section to259ICA TIOPA 2010. The words "or body" are being removed to ensure consistency with existing provisions within Part 6A TIOPA 2010.
10. introduces a to new section 259ICA TIOPA 2010, which was introduced by Paragraph 13 of Schedule 7. New subsection (4A) imports existing subsection 259B(5) of TIOPA 2010 into the new subsection 259ICA(2)(b) to determine residence where no concept of tax residence exists.
11. removes the words "or body" from new subsection 259ICA(5) TIOPA 2010, which was introduced by Paragraph 13 to Schedule 7, to ensure consistency with existing provisions within Part 6A of TIOPA 2010.
12. inserts a replacement into Chapter 11 Part 6A TIOPA 2010. It replaces the existing Condition E necessary for Chapter 11 to make a counteraction, which addresses situations where jurisdictions which have implemented the OECD's recommendations on hybrid instruments are involved in a payment chain which eventually gives rise to a hybrid mismatch.
13. provides that Condition E is that it is reasonable to suppose that the relevant mismatch is not capable of counteraction.
14. provides that a relevant mismatch is capable of counteraction to the extent it is capable of being considered, for the purposes of determining the tax treatment of a person other than P, under the law of a territory that is OECD mismatch compliant. This language is intended to address an ambiguity in the existing legislation, and make it clear that it is not necessary for a counteraction to be made in a relevant territory which has adopted the OECD recommendations in order for Condition E not to be met. It is sufficient that the relevant territory is OECD mismatch compliant, and so it has OECD derived law which addresses the question of whether a hybrid counteraction might arise.
15. provides for the possibility of a proportionate satisfaction of Condition E, where only a proportion of the relevant mismatch is capable of counteraction in a territory that is OECD mismatch compliant. This is to prevent Chapter 11 being fully disapplied in circumstances where funding for only part of the relevant mismatch passes via a territory that is OECD mismatch compliant.
16. provides that any determination of proportionality for the purposes of new section 259KA(7B) is to be done on a just and reasonable basis. By way of example, assume a UK company paid 100 to a company in a non-OECD mismatch compliant jurisdiction, that company then paid 90 to a company in another non-OECD mismatch compliant jurisdiction and 10 to a company in an OECD mismatch compliant jurisdiction, and then those two payee companies paid 90 and 10 respectively to a company in a non-OECD mismatch compliant jurisdiction which was the payer in relation to a relevant mismatch of 100. The combined effect of new subsections 259KA(7B) and (7C) is that only 10 of the relevant mismatch would be treated as capable of counteraction, and Condition E would be treated as satisfied in respect of a relevant mismatch of 90.
17. defines what is meant by a territory being OECD mismatch compliant. This status is achieved by a territory if its law gives effect to the OECD report on hybrid mismatches. It is not necessary for the territory's law to deliver the same outcome as the UK's hybrid rules would in any given situation as long as the territory can be said to have given effect to the report.
18. amends new subsection 259ZMB(9) TIOPA 2010, which was introduced by Paragraph 36 of Schedule 7, to ensure that both subsection s (4) and (7) of section 1122 CTA 2010 are ignored for the purposes of establishing whether one person is connected to another.
19. corrects for the omission of the word "entity" in new subsection 259MC(1(a) TIPOA 2010, which was introduced by Paragraph 39 to Schedule 7
20. provides for a replacement , which was introduced by Paragraph 36 to Schedule 7. The amendment is to allow the provision to apply where the relevant fund holds an indirect interest in the hybrid entity making the doubly deductible payment via another entity that is not a transparent fund.
21. Clause 36 and schedule 7 of Finance (No. 2) Bill introduce several amendments to the Corporation Tax rules for hybrid and other mismatches. These rules have been in effect since 1 January 2017 and implement action 2 of the OECD's Base Erosion and Profit Shifting Project. The changes in Clause 36 and Schedule 7 are being made, following consultation, to ensure the rules operate proportionately and as intended and to alleviate instances of economic double taxation.
22. Following publication of Finance (No. 2) Bill and subsequent engagement with stakeholders, the Government are tabling a number of largely technical amendments to ensure the changes in Finance (No. 2) Bill have the intended effect and to remove some potential unintended consequences that have been identified.04-19-2021
On 14 April 2021, the Qatari Cabinet reportedly approved the signature of an amending protocol to the 2012 income tax treaty with Bermuda. The protocol will be the first to amend the treaty and must be signed and ratified before entering into force.04-19-2021
On 14 April 2021, the Estonian parliament approved the law for the ratification of the pending protocol to the 2011 social security agreement with Moldova. The protocol, signed 2 December 2020, is the first to amend the agreement and will enter into force after the ratification instruments are exchanged.04-19-2021
Japan's Ministry of Finance has published the synthesized text of the 1999 income tax treaty with Malaysia as impacted by the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting (MLI). A summary of the application of the MLI has also been published. The synthesized text is solely for the purpose of facilitating the understanding of the application of the MLI to the treaty and does not constitute a source of law. The authentic texts of the Agreement and the MLI are the only legal texts applicable.
The MLI applies for the 1999 Japan-Malaysia tax treaty:
- with respect to taxes withheld at source on amounts paid or credited to non-residents, where the event giving rise to such taxes occurs on or after 1 January 2022; and
- with respect to all other taxes levied by that Contracting State, for taxes levied with respect to taxable periods beginning on or after 1 December 2021.
Click the following link for the Ministry of Finance's webpage on the BEPS MLI for more information.04-19-2021
Kosovo is reportedly seeking to begin negotiations for an income tax treaty with Israel. Any resulting treaty would be the first of its kind between the two countries and must be finalized, signed, and ratified before entering into force.04-19-2021
On 15 April 2021, the Spanish Congress of Deputies (lower house of parliament) approved the law for the ratification of the pending social security agreement with Senegal. The agreement, signed 22 November 2020, is the first of its kind between the two countries and will enter into force after the ratification instruments are exchanged.04-19-2021