Essays in Honour of Ben Terra av Papis-Almansa Marta - 9789087228187 - Jure bokhandel


Essays in Honour of Ben Terra
– EU Value Added Tax and Beyond
Författare:Papis-Almansa Marta
Titel:Essays in Honour of Ben Terra – EU Value Added Tax and Beyond
Omfång:360 sid.
Typ av verk:Samlingsverk
Ämnesord:Festskrifter , Skatterätt

Pris: 1558 SEK exkl. moms


EU Value Added Tax and Beyond is a book dedicated to Professor Ben Terra, who was a leading expert and one of the most influential authorities on value added tax (VAT). Professor Terra’s legacy has had an immense influence on the development of EU tax law.

The book is a collective initiative to address the current issues within the major themes of Professor Terra’s work. It aims to answer questions raised by dynamic changes to the legal environment and the social and economic context of VAT and European taxation. The contributions to this book are inspired by Professor Terra’s work and the lively discussions that took place during the conference that was held in his memory at Lund University in September 2021.


Giorgio Beretta, Cécile Brokelind, Ad van Doesum, Ole Gjems-Onstad, Sigrid Hemels, Charlène Herbain, Mariken van Hilten, Marja Hokkanen, Julie Kajus, Eleonor Kristoffersson, Tomasz Michalik, Samuli Miettinen, Rebecca Millar, Donato Raponi, Mariya Senyk, Päivi Taipalus, Alexis Tsielepis and Peter Wattel

The book is divided into five parts, addressing in turn the principle of VAT neutrality; the place-of-taxation rules and cross-border issues; tax abuse and avoidance; the Charter of Fundamental Rights and taxation; and the future of EU VAT and indirect taxation. Within these themes, the authors insightfully address the most recent developments within the field, discussing in depth topics such as the right to deduct input VAT, the scope of exemptions, combating VAT fraud, the concept of a fixed establishment and the “use and enjoyment” rule. The wide array of issues regarding abuse and avoidance goes beyond EU VAT, featuring questions on EU law and corporate income tax, as well as a Norwegian law perspective on tax avoidance. International exchange of information in the field of VAT is discussed from the perspective of taxpayers’ rights. The book concludes with a historical perspective on the development of EU VAT and an attempt to answer the question of what the future holds for it.

Professor Terra’s work and his passion, enthusiasm and generosity in sharing his knowledge with and educating the next generations of tax lawyers have been of enormous importance for academic society, policymakers, tax authorities and businesses alike. This book provides a firm foundation for taking a step forward along Professor Terra’s path of continuous self-education, working for the betterment for the EU VAT system and EU tax law, and, as always, helping new entrants navigate their intricacies. Hence, it will be greatly appreciated by the tax community worldwide.

Table of Contents

Preface xiii
Acknowledgments xvii
About Ben xix
Part I Neutrality of VAT
Chapter 1: Capital Contributions: VAT Neutrality, Economic Reality and Legal Certainty 3 Ad van Doesum
1.1. Introduction 3
1.2. W- GmbH (C-98/21): A legal or economic approach? 5
1.3. Economic approach and economic reality 6
1.4. Setting the scene: W- GmbH 9
1.5. The recipient of the supply 9
1.6. Intermission 10
1.7. Capital contributions 11
1.7.1. Monetary contributions 12
1.7. 2 . Contributions in kind 13 Contributions in kind as taxable supplies 13 Contributions in kind as out-of-scope activities 14
1.7. 2 . 3. Contributions in kind as deemed taxable supplies 16
1.8. Tentative conclusions 21
1.9. The right of deduction and non-taxable contributions in kind 22
1.9.1. General costs 23 Cost inclusion test 24 Causality test 24 Use or intention test 25
1.9.2. Direct and immediate link with the contributor’s economic activity 25 Strategic contribution 26 Accessory contribution 27 Controlling contribution 28
1.9.3. Direct and immediate link with the subsidiary’s economic activity? 29
1.10. Deduction, neutrality, abuse and internal supplies 29
1.10.1. Abuse of law 30
1.10.2. Internal supplies 32
1.11. Conclusions 33
Chapter 2: Charities and VAT 35 Sigrid Hemels
2.1. Introduction 35
2.2. Size of the philanthropic sector in the European Union 36
2.3. Charities not always taxable persons for VAT 37
2.4. Exemptions can result in VAT being a cost for charities 39
2.4.1. VAT Exemptions relevant to charities 40
2.4.2. Reason for indeterminate wording of some exemptions 42
2.4.3. Interpretation of the exemptions 43
2.4.4. Non-profit organizations 48
2.5. Solutions for the VAT problems of charities 51
2.5.1. Reduced rate instead of exemption 53
2.5.2. Zero rate or exemptions with deduction of input tax 55
2.5.3. Solution outside of VAT? 56
2.6. Conclusion 60
Chapter 3: Neutrality between Domestic and Foreign Suppliers of Educational Services 61 Marja Hokkanen and Samuli Miettinen
3.1. Introduction 61
3.2. Exempt educational services under the VAT Directive 62
3.2.1. Educational services under article 132(1)(i) of the VAT Directive (2006/112/EC) 62 3.2.2. Exempt university education 65
3.3. The VAT treatment of educational services in Finland 67
3.3.1. VAT Act of Finland 67
3.3.2. MBA education may be exempt, depending on the domicile of the supplier 68
3.4. The principle of neutrality in VAT 70
3.4.1. What is neutrality? 70
3.4.2. Exemptions and the principle of neutrality 73 vii Table of Contents
3.4.3. Member States must apply exemptions in a non- discriminatory manner 74
3.5. Analysis of the Finnish legal situation 76
3.5.1. Discrimination and fiscal neutrality in case law 76
3.5.2. Implementation of the exempt education services in Finland 77
3.6. Conclusions 79 Part II Place of Supply Rules and Cross-Border Issues
Chapter 4: Balancing between Legal Character and Combating Fraud 85 Mariken van Hilten
4.1. Very brief sketch of VAT’s legal character 85
4.2. External neutrality (in a European Union without frontiers) 86
4.3. Combating fraud 87
4.3.1. Fraudulent schemes and (non-)reliance on EU law 87
4.3.2. Consequences to the detriment of external neutrality 88
4.3.3. Justification? 90
4.4. The fraudsters, the prudent and the in-betweens 90
4.5. Only VAT fraud that (may) result in a loss of EU VAT revenue is affected 92
4.6. Conclusion 93
Chapter 5 : Cracking Nuts with a Steamroller: The Place of Use or Enjoyment in VAT 95 Rebecca Millar
5.1. The problem 96
5.2. Locating consumption in a tax on production 101
5.3. Effective use or enjoyment rules, and alternatives 105
5.3.1. Analysing the EU rules 105
5.3.2. Australia, New Zealand and Singapore 111
5.4. Advertising 115 5.4.1. Athesia Druck 115
5.4.2. Australia, New Zealand and Singapore 121
5.5. Mobile roaming services 124
5.5.1. SK Telecom 124
5.5.2. Australia and New Zealand 129
5.6. Conclusions? 132
Chapter 6: The Phenomenon of “Digitalization” of Services: A Critical Analysis of the Place-of-Supply Provisions Applicable to Certain Categories of Remote Services 133 Mariya Senyk
6.1. Introduction 134
6.2. Examples of “competitive” place-of-supply provisions 136
6.3. The substantive scope of articles 53 and 54 of the VAT Directive 14 0
6.3.1. A historical insight 14 0
6.3.2. Interpretation by the ECJ 143
6.4. The application of articles 53 and 54 of the VAT Directive to remotely delivered services 147
6.4.1. The position of the ECJ 147
6.4.2. Interpretation by the VAT Committee 152
6.4.3. Determining the place where an event/activity “actually takes place” 152
6.5. Electronically supplied services versus services covered by article 54 of the VAT Directive 154
6.5.1. Distinctive features of “electronically supplied services” 154
6.5.2. Services related to educational activities versus electronically supplied services 157 6.5.3. Services related to sporting activities versus electronically supplied services 158 6.6. Possible remedies 160
6.6.1. A “rational result for tax purposes” and other principles of interpretation as a means to ensure legal certainty 160
6.6.2. Redefinition of electronically supplied services? 162
6.6.3. The use of “effective use and enjoyment” to ensure taxation of services consumed in the European Union 163
6.7. Conclusions 16 4
Chapter 7: Fixed Establishment in the 21st Century 167 Giorgio Beretta
7.1. Introduction 167
7.2 . The concept of core functions 176 ix Table of Contents
7.3. ECJ case law on core functions 180
7.4. Core functions and FEs in the 21st century 184
7.4.1. Permanence 184
7.4.2 . Human resources 186
7.4.3. Technical resources 190
7.4.4. Possession 191
7.5. Outsourcing 193
7.6. Fragmentation 196
7.7. Dependence 198
7.8. Conclusion 201
Chapter 8 : Fixed and Permanent Establishments: Dizygotic Twins or Just Acquaintances? 203 Alexis Tsielepis
8.1. Introduction: The problem 203
8.2. The history and importance of the PE 206
8.3. The history and importance of the FE 208
8.4. FE versus PE: Dizygotic twins or just acquaintances? 212
8.4.1. Two different purposes 212
8.4.2. Language barriers 213
8.4.3. Scope of a PE broader than that of an FE 214
8.4.4. The association with the head office 215
8.4.5. Permanence 216
8.4.6. Requirement for human intervention/presence of personnel 217
8.4.7. Agency PE versus agency FE 219
8.4.8. The starting point 221
8.5. Conclusion 223
Chapter 9: Fixed Establishment: In Search of New Ideas 225 Tomasz Michalik
9.1. A formally autonomous entity as the fixed establishment of another taxable person 226
9.2. Possible double taxation: A need for a dispute resolution mechanism 234
9.3. Formally independent entity as an FE of another taxable person: A Gordian Knot 238
9.4. Conclusions 240
Chapter 10 : The Fixed Establishment and the Principle of Legal (Un)certainty 2 41 Päivi Taipalus
10.1. Introduction 2 41
10.2. Legislation in the European Union 242
10.3. Some interpretations of the ECJ on the concept of a fixed establishment 247
10.4. Unanimous views among the Member States 250
10.5. Examples of different interpretations regarding the concept of a fixed establishment in some Member States 252
10.6. Legal certainty 254
10.7. Conclusions 257 Part III Tax Abuse and Avoidance
Chapter 11: Can the Single Tax Principle Justify Anti- Avoidance Rules? The Case of Corporate Income Tax 261 Cécile Brokelind
11.1. Introduction 262
11.2 . Some new elements on the concept of abusive practices 265
11.2.1. Abusive practices as a threshold 265
11.2.2. Codification of the general principle prohibiting abusive practices in the ATAD and its other rules 270
11.3. New questions? 271
11.3.1. The single tax principle as a solution? 271
11.3.2. Tax base erosion and group taxation: A never-ending story 275
11.4. Short conclusion 276
Chapter 12 : Tax Avoidance from a Norwegian Perspective : VAT Avoidance vs Income Tax Avoidance – The Norwegian 2020 Approach 277 Ole Gjems-Onstad
12.1. Free to experiment 277
12.2. Lengthy anti-avoidance provision 278
12.3. Many income tax cases – No VAT case 279
12.4. Enactment of an anti-avoidance provision 281
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