On September 22, 2022, the ECJ issued its decision in the case C-330/21 (The Escape Center).
Context: Reference for a preliminary ruling – Taxation – Value added tax (VAT) – Directive 2006/112/EC – Article 98 – Option for Member States to apply a reduced rate of VAT to certain supplies of goods and services – Annex III , point 14 – Notion of “right to use sports facilities” – Sports halls – Individual or group support
Article in the EU VAT Directive
Article 98, second paragraph, of Directive 2006/112
Article 98 (VAT Rate)
1. Member States may apply either one or two reduced rates.
2. The reduced rates shall apply only to supplies of goods or services in the categories set out in Annex III.
The reduced rates shall not apply to electronically supplied services.
Facts
Plaintiff is registered as a VAT taxpayer for the activity of “fitness centers”. It provides access to rooms where you can improve your fitness and develop muscles on equipment. The fitness equipment is used either individually or in groups, with or without (limited) supervision. Plaintiff first always declared 21% VAT, but after the judgment of the Court of Appeal in Antwerp of 17 September 2013, Plaintiff was of the opinion that the reduced VAT rate of 6% instead of the standard VAT rate of 21% is applicable. The difference of 15% in VAT, being 48,622.64 euros, was requested back by the plaintiff for the period 2015 to the first quarter of 2018. The tax authorities did not agree to this and sent a correction statement. With the appeal lodged thereupon, the claimant claims the annulment of the correction statement, order the repayment of all amounts unlawfully collected on the basis of this writ of execution, order the Belgian State to pay the costs of the proceedings, and refer a question to the Court of Justice for a preliminary ruling. . The defendant claims that the plaintiff’s objection should be dismissed and that the plaintiff bears all costs of the proceedings. According to the claimant, the tax authorities,
Consideration:
The court is of the opinion that a preliminary question to the Court is (already) necessary in the first instance because the tax authorities treat fitness centers unequally in practice (certain inspectors would accept the 6% rate, others agree to an average VAT rate). rate, and other auditors state that the 21% rate should be applied to all fitness center activities). In addition, the Dutch tax administration apparently takes the same view as the plaintiff and therefore has a different interpretation than its Belgian counterpart. In the Netherlands, “giving the opportunity to exercise” falls under the 9% rate. According to her, this also includes “services, such as giving lessons, instructions or guidance”. There is therefore no uniform interpretation in accordance with the directive in this regard.
See also Minbuza.nl
Questions
Is Article 98, second paragraph, of Directive 2006/112, read in conjunction with Annex III, 14) of that directive, to be interpreted as meaning that the right to use sports facilities is subject to the reduced VAT rate only if no individual guidance or guidance in group is provided?
AG Opinion
None
Decision
Article 98(2) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, read in conjunction with point 14 of Annex III to that Directive ,
should be interpreted as:
a supply of services consisting of the granting of the right to use the sports facilities of a sports hall and the provision of individual or group support may be subject to a reduced rate of value added tax, where this support is linked to the use of these facilities and is necessary for the practice of sport and physical education or when this support is incidental to the right to use the said facilities or to their effective use.
Personal comments/VATupdate
Source:
Reference to the case in the EU Member States(+UK)
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