Proposal for a Council Directive amending Directive 2006/112/EC on the common system of value added tax as regards the rules on invoicing - Hoofdinhoud
Contents
| Documentdatum | 20-10-2009 |
|---|---|
| Publicatiedatum | 22-10-2009 |
| Kenmerk | 14600/09 ADD 1 |
| Van | Presidency |
| Aan | Working Party on Tax Questions - Indirect Taxation (VAT) |
| Externe link | originele PDF |
| Originele document in PDF |  |
COUNCIL OF PUBLIC Brussels, 20 October 2009
THE EUROPEAN UNION
14600/09
Interinstitutional File: ADD 1
2009/0009 (CNS) i LIMITE
FISC 132
ADDENDUM TO NOTE from: Presidency to: Working Party on Tax Questions – Indirect Taxation (VAT) No. Cion prop.: 5985/09 FISC 13 - COM(2009) 21 final i Subject: Proposal for a Council Directive amending Directive 2006/112/EC i on the
common system of value added tax as regards the rules on invoicing
Delegations will find below comments from the Presidency to the proposed changes in the Note
(doc. 14600/09).
Article 63
The Presidency has deleted the words “The following” because they are superfluous. As agreed at the meeting on 9 September the Presidency has reinserted reference to article 65 regarding payments on account. This means that payments on account before the supply is made shall not be entered on a recapitulative statement. One delegation raised the question whether payment on account of an intra-Community supply of services should have a similar chargeability rule (see new rules for recapitulative statements for services in Directive 2008/8/EC i). Member States are invited to present their views on this suggestion.
14600/09 ADD 1 GM/df 1 Article 64
The Presidency has corrected a mistake in the reference in Article 64(1). One delegation questioned the difference of time periods for continuous cross-border supplies of services and cross-border supplies of goods. The Presidency has aligned the time period for goods in Article 64.2 first subparagraph with the time period for services in the second subparagraph of Article 64.2. The Presidency has further clarified the references in Article 64(2) last subparagraph. For clarity the whole article is inserted in order to show delegations how it is finally proposed to look, showing also the changes through Directive 2008/117/EC i.
Article 66
The Presidency has specified the deadline. For practical reasons this deadline corresponds to the option provided for in Article 222 second subparagraph. The Presidency would like to stress that there is no formal link between this provision and the provision in Article 222. Article 66 is optional for Member States.
Article 68
The Presidency reverted to the Commission proposal and has therefore deleted the text
“corresponding intra Community”.
Article 167a
As requested by one delegation the Presidency has added the word “solely” in order to clarify that the option applies only if the VAT of the taxable person solely becomes chargeable according to Article 66 (b). The Presidency has also re-inserted the words “annual turnover” to clarify further. A threshold of a particular amount is reflected in previous Article 395-derogations (see for example Council Decision 2007/133/EC i). Those derogations are limited by reference to thresholds. The option in Article 66 (b) has no threshold limitation, however, since the option in Article 167a concerning right of deduction is a restriction on taxable persons it is justified to limit the right of Member States in this article by reference to a threshold. Also mention is made to the national currency for those Member States not using the Euro.
Article 178
The reference to invoice has been removed from Article 178 (f) as most Member States thought an invoice was not needed for a right of deduction for reverse charge supplies. The text in Article 178(f) now reverts to the current text in the VAT Directive. In Article 178 (a) and (c) only references are changed. These new references are kept in the text.
Article 180 (not changed)
The Presidency has kept the proposed changes to article 180 since the second paragraph replaces the current article 182. In a previous Presidency note (document 12629/09 FISC 103) it was stated that the customer could complete the invoice from the seller if this invoice was incomplete. The invoicing rules do however not allow an obligation to be placed on the customer to draw up an invoice when that obligation is not fulfilled by the seller. Article 180 could allow the Member State to require the customer to complete a self-document, much like an invoice, to have a right of deduction when the supplier has no fulfilled his obligation to issue a valid VAT invoice.
Article 217
The Presidency suggests that the definition of ‘transmission or provision by electronic means’ is deleted because the emphasis concerning electronic invoicing is shifted from the sending of the electronic invoice to the content of the electronic invoice. The change is linked to the Presidency’s proposals for Articles 232-233.
Article 218
As requested by several delegations the Presidency has clarified that the restriction for Member
States in Article 218.2 does only concern rules for VAT purposes. Furthermore, the Presidency has adapted the wording to fit with the changes made regarding electronic invoicing (see Articles 217, 232 and 233).
Article 219a
The Presidency has replaced the words “The issue of an invoice” with the word “Invoicing” to clarify that the jurisdiction rule applies generally to the invoicing obligations in the Directive (except for storage, Articles 244-248).
As suggested by some delegations the Presidency has clarified the rules for situations where a supply is made from an establishment within the EU but where tax is not due within the EU (for example exports of goods or a supply of a service to customers outside the EU). Where a taxable person is exporting goods to a third country, the rules of the MS where the taxable person is established shall apply to the invoice. Furthermore, the Presidency has adapted the text regarding establishment and fixed establishment. The wording is based on the wording in the rules concerning place of supply of services (Article 44 in Directive 2008/08/EC i). The Presidency has put a text in square brackets. Delegations are requested to state whether they wish the text to be included. Furthermore, the Presidency has introduced an obligation to follow the EU-invoicing rules for traders that have no establishment of any kind within the EU if they are liable themselves to pay tax within the EU. The Presidency has also shortened the wording in paragraph 2. No change as to substance is meant.
One delegation raised a question about so called “force of attraction” (see Article 192a in
Directive 2008/8/EC i) which concerns a situation where for example a trader with an establishment in a third country also has an establishment within the Community but this latter establishment does not intervene in the transaction in question. In such a case the rule in Article 219a says that applicable law is the law where the establishment is situated from which the supply is made which means that the trader is not obliged to follow the rules in the place of the “non-intervening establishment”.
Article 220
The Presidency has deleted the reference to point (3) because the requirement to issue an invoice for payments on account for intra-Community supplies is now removed. This is a follow up to the change in Article 63 regarding payment on account.
Article 220a.1
The Presidency has lowered the threshold for the simplified invoice to take account of concerns by some delegations. It is possible to apply a threshold up to 400 euro according to Article 238. The reference to “taxable amount” is kept as requested by several delegations. The reason is control purposes. An invoice may with the wording “amount of the invoice” be artificially split up in several invoices in order for the taxable person to be able to use the less detailed simplified invoice.
Article 220a.2
The Presidency has simplified the reference to the first paragraph. According to Article 219a first subparagraph, the Member State where the tax is due determines the conditions for the simplified invoice.
Invoices issued according to Article 220 (2) (B2C distance sales of goods) shall be issued according to the rules in the Member State where the VAT is due which is where the transport ends on certain conditions (see Article 33). The place of supply and the place where the VAT is due is the same place. Invoices issued for intra-Community supplies of goods (Article 220 (3)) shall follow the rules according to Article 219a.1 second subparagraph, which is the place where the supplier has established his business or has a fixed establishment.
Article 221
Some delegations want clarification concerning Fiscal Receipts. In some Member States such receipts must be issued to non-taxable persons. It is the view of the Presidency that such obligation is covered by the option in Article 221.1. The Presidency cannot see that Member States are prevented from imposing that Fiscal receipts should be produced by a cash register or any other means. Therefore, there is no need to amend the text to take account of the issuing of Fiscal Receipts. Member States and the Commission are invited to comment on this interpretation of the legal text.
The Presidency has deleted the words in brackets since they are superfluous. Furthermore, the
Presidency has deleted the words “where the place of supply of goods or services is within their territory” in Article 221.1. The conditions for imposing an invoice for other supplies of goods and services shall according to the main rule in the applicable law provision in Article 219a be determined by the law in the Member State where the VAT is due. For B2C supplies of goods and services the tax is due in the place of supply. In Article 221.2 a reference has been added to include also the simplified invoice in Article 220a in this option.
The Presidency has not deleted the words “where the place of supply of goods or services is within their territory”. The right to release from an invoicing obligation shall only be possible if the supply is domestic and therefore the current wording is retained. If a supplier would be released from invoicing obligations also for cross border supplies, there could, for example, be difficulties in applying properly the tax rules for intra-Community acquisitions made from traders which are covered by the special scheme for small enterprises (see Articles 281 etc. compared with Articles 2 and 3 in the VAT Directive). In these cases the information on an invoice is important, see also Article 226.
Article 222
The Presidency has kept an option for Member States to set a time limit for the issue of the invoice for domestic supplies. In some Member States such a time limit would increase the administrative burden for business compared with their current situation. In case a time limit is applied the Presidency suggests that a maximum limit is set. The Member States may impose shorter time limits.
Article 225
The Presidency has deleted the text “supplying goods or services in their territory” because the rule in Article 219a should determine which Member State can impose the conditions and what those conditions can say. The main rule in Article 219a says that the conditions shall be set by the Member State in which the tax is due.
Article 226 - general
Common to points 7a, 10a, 11, 11a, 13 and 14: The Presidency has changed the wording so that a wording in English as well as a corresponding wording in the national language may be used by the taxable person. For clarity, it has also suggested that the whole word is written out instead of an acronym.
Article 226.4
The Presidency has deleted the reference to Article 395.
Article 226.7a
The Presidency has clarified the reference to Article 167a.1.
Article 226.11
Some delegations requested that the information concerning exemptions should be broken down into more detail. Since exemption is a wide concept the Presidency suggests that a reference to the particular law provisions should be made, as in the current text in the Directive (see Article 226(11)). The word “Exempt” should be mentioned in combination with the law provision as an explicit information.
Article 226.11a
Reverse charge can apply for domestic transactions (for example Article 196 and 199) as well as for international transactions (for example cross-border supplies of services, see Directive 2008/8/EC i). The Presidency has not seen any particular need to add more details than the words “Reverse charge” or the corresponding words in the national language.
Article 226.b
Several delegations asked for more details on the simplified invoice. The Presidency has introduced an additional optional list for Member States which could meet the requests. In 2(d) the reference to cross border supplies is not needed since simplified invoices are not possible for these types of supplies as indicated by Article 220a(2).
Article 230
The Presidency has deleted the text “in which the supply of goods or services takes place”. The content of the invoice is determined by the Member State where the VAT is due according to the main rule in Article 219a.
In the title of Section 5 of Chapter 3 of Title XI, the words "Sending invoices by electronic means” are replaced by "Electronic invoicing"
The Presidency has changed the title for Section 5. The reason for this is that in electronic invoicing focus should be on the content of the invoice and not on the method for sending the invoice. The current legislation in the VAT Directive is focusing on the method for sending electronic invoices but for control purposes it is the content of the invoice which is important, and the fact that the content must not be altered.
Why should we focus less on the means for sending of the invoice? – current situation
The way an invoice is sent, on paper in an envelope or by electronic means via a computer, is less relevant for control purposes. It is the content of the invoice which is important for control purposes. From what the Presidency has found having examined the situation in several MS is that it is very difficult to apply strict e-signature rules on all forms of electronic transmission since the definition of electronic transmission is very wide (see current rule in Article 217 as well as the Presidency note from 1 July). In practice it is so that simple forms of sending invoices by electronic means such as sending a fax or sending a scanned paper invoice in a pdf-file via e-mail is in fact accepted in most Member States without electronic signatures added on it (or no action is actively taken against it from the controlling authorities) even if the legislation formally requires an electronic signature on the invoice. It is also so that imposing restrictions on these simple forms of transmission of electronic invoices (pdf-files for example) is useless since the taxable person can easily print the file when he receives it and nobody can ever prove that it was sent electronically. If Member States want to continue to accept some (simple) forms of transmission of the invoice in electronic form without imposing electronic signatures on them, and if Member States want to keep their current requirement for electronic signatures, the legal definition in Article 217 should be changed.
Under this section some particular requirements are provided for electronic invoicing. The
Presidency has understood some delegations so that they still wish to apply certain conditions to electronic invoicing. The text below is an attempt to strike a balance between delegations who are reluctant to drop their current requirements on electronic invoicing and those delegations who do not impose any particular requirements at all. See more about this below.
Article 232
The Presidency has re-inserted the requirement that the use of electronic invoicing should be subject to acceptance by the recipient. Several delegations wished to have this requirement back. Since this requirement is directed to the issuer/user of electronic invoicing and not an option for MS, the Presidency thinks that this is a justifiable requirement. The rule can protect smaller businesses rights and interests. Furthermore, the rule is also useful for control purposes. Such an acceptance can be checked by the Tax administration either by verifying with the seller or with the buyer. However, it must be possible to make an acceptance by the recipient in an informal way. It would be contrary to the aim to reduce the administrative burden for traders to require any particular system for a prior agreement.
Article 233
The Presidency has made a provision which focuses on the content of the electronic invoice rather than on the actual sending of the electronic invoice. This allows for invoices to be sent electronically in different ways, which includes closed systems such as EDI, or open systems such as e-mail with a pdf-file, without there being a requirement to guarantee that the invoice is not
changed during the transfer itself 1 . The important guarantee is that the content is not changed by
neither the issuer nor the receiver so that the data sent can be matched through controls at the place of the issuer and at the place of the receiver. The Presidency has replaced the words “in the system that they use” with the words “in their internal business control process”, to clarify that the business system must prove to be reliable. The Presidency has deleted the words “authenticity of the origin” because they are linked to the process of sending the invoice. The words are also difficult to define if different methods for electronic invoicing should be accepted within the Community. The words are not currently defined in the VAT Directive. The words are not found in the Directive 1999/93/EC i on a Community framework for electronic signatures. They are linked to a requirement to sign an electronic document, in this case an invoice, which requirement disappeared for paper invoices when the invoicing directive was adopted in 2001. What does the requirement bring the controlling authorities? The controlling authorities want to check the input tax so that it corresponds to a real transaction and that the information on the invoice has not been changed (integrity of the content). Is this best done by verifying WHO sent the invoice? For controlling authorities showing WHO sent the invoice should be less interesting since anyone who wants to commit fraud can liaise with a partner who can provide him with false (and perfectly signed) electronic invoice. What is more important for controlling authorities is the integrity of the content which means that the content can not be altered. This can also be verified by an electronic signature. An (advanced) electronic signature may be attached to the electronic invoice sent by the supplier, or it may be attached when the e-invoice is received by the buyer. But the electronic signature is only one way out of several ways to guarantee the integrity of the content.
1 In very secure e-invoicing systems the parties must ensure that it is not possible to ”break into” the
chain and change the content on it’s way to the recipient. Such systems are for example used by banks. It is a security which must be up to the parties to choose but it is not necessary for VAT control purposes.
The aim of the Presidency is to create a legal text for electronic invoicing which is technology neutral. There is no common standard implemented within the EU for electronic invoicing and therefore it is not possible to point out any particular system or technology in the legal text. However, to enhance legal certainty for taxable persons using electronic invoicing a second paragraph is inserted providing examples of possible methods for ensuring the integrity of the content of electronic invoices.
In the last paragraph (3) the Presidency suggests that “electronic invoicing” shall mean invoicing which is not made in paper format. The Presidency sees two ways of invoicing, on paper or electronically. An oral invoice should not be possible because it cannot be stored. Paper invoices sent via traditional fax machines or scanned paper invoices sent via electronic mail where the content cannot automatically be processed into the accounts of the recipient should not to be regarded as electronic invoicing. These two methods are simple forms of electronic invoicing which should be put on the same footing as paper invoicing.
The new scheme for electronic invoicing could be combined with a later date for the entering into force of the particular rules for electronic invoicing to facilitate the transition. Delegations are invited to comment on this suggestion.
Article 238
The words “in their territory” are deleted. The rule in Article 219a establishes which Member State can set the rules for the invoicing obligations. See comment to Article 220a regarding the change of the amount from EUR 200 to EUR 150.
Articles 239 and 240 (not changed)
Some delegations requested the reinsertion of these Articles. However, the Presidency has identified control problems in relation to the use on invoices of a tax reference number. Traders are using their tax reference numbers instead of the VAT identification number in intra-Community trade. This means that the number cannot be checked in the VIES-system
Article 242
Some delegations wished to keep the current wording in Article 242.1. The Presidency has therefore reverted to the current text in the Directive. In Article 242.2 the Presidency has changed ‘tax authorities’ to ‘competent authorities’ which is a more neutral expression. The Presidency has also added the right to request information etc. from taxable persons who are not established but who are liable to pay VAT in a particular Member State. The Presidency also added a requirement for taxable persons to describe and explain the (business) system which they use (see also the Presidency note on control, document 12609/09 FISC 102 which describes the audit methodology).
Article 244
The Presidency has added a clarification in the third subparagraph regarding invoices received and copies of invoices issued. Furthermore, the Presidency suggests that, in the case of a taxable person who has no establishment or address within the EU, should store the invoice where he is liable to pay the tax mentioned on the invoice in question. The current wording is unclear in cases where a taxable person has multiple registrations.
Article 246
The Presidency has adjusted Article 246. The changes are linked to the proposed changes for
Articles 232-233.
Article 247
The Presidency has linked the storage period for immovable property to the adjustment period used under the capital goods scheme in Article 187.
The time for storage varies considerably within the EU. The span is wide (from 5 up to 20 years or more). Furthermore, the storage time is linked to other legal areas such as accountancy and criminal law. Some delegations pointed at the relationship between the jurisdiction rule in Article 244 and the time span for storage in Article 247 and the control difficulties which may arise when Member States apply different time limits for storage. If a Member State wants to control a transaction which is taxed in that Member State and the place of storage is in another Member State, the information needed for control might be deleted because of shorter storage period. However, in the view of the Presidency it would be a disproportionate burden on taxable persons to ask them to store invoices in all places where they have issued an invoice, regardless of whether they have an establishment there or not.
Article 248 (not changed)
In the COM proposal this Article was deleted. The Presidency has reintroduced it but has given it a more limited application. Only invoices for supplies linked to immovable property should be stored by the receiving non-taxable person. The Presidency wants to limit the burden on non-taxable persons and therefore suggests that the rule remains limited in scope.
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