The Court is of the opinion that the average consumer takes out a subscription such as the present in order to acquire the right to use the infrastructure of the interested party, in other words the right to use the telecommunications services offered by the interested party. The Court does not consider it plausible that ‘donating’ MBs and thereby participating in a game of chance are goals in themselves for the average consumer. It is important that the ‘donation’ of MBs is voluntary and arbitrary and that the legal relationship with the interested party does not change. This constitutes a unilateral act on the part of the customer, which has not proven to lead to additional turnover for the interested party. The Court agrees with the interested party that the right to consume MBs represents a certain value, which is already apparent from the fact that the interested party successfully sells this right to its customers. However, this does not alter the fact that a substantial part of the MBs remain unused and the right to use the MBs eventually expires. These MBs, from the customer’s perspective, no longer represent any value once it is clear that they will not be consumed. Whether what is obtained with the surrender of MBs has more than incidental significance, the Court should also consider in this perspective. In view of this, the Court considers the possibility of handing in MBs and thus receiving lottery tickets for participation in a game of chance as elements that are additional extras for the average consumer. The collateral status of this is confirmed by the fact that only 0.042% of unused MBs are ‘donated’. More than 99, 9% of the unused MBs – which from the customer’s point of view become worthless after the expiration of the consumption term – therefore remain unused and are not exchanged for lottery tickets, even if it is clear to the customer that the MBs will not be used up and the right to use them without compensation will lapse. Whether participation in the game of chance has a more than incidental attractiveness cannot be deduced from the value of the consideration that does not consist of handing in (unused) MBs, since participation in the game of chance is only possible by handing in (unused) MBs . The conclusion is that the right to use the telecommunication services offered by the interested party is the main performance and that giving the opportunity to hand in MBs and thus participate in a game of chance are additional elements that share the tax fate of the main performance. This means that the turnover tax owed on the services to be performed can already be determined at the time of commencement of the subscriptions. The Inspector is therefore right and the interested party owes turnover tax on the full subscription fees received.
Source: uitspraken.rechtspraak.nl
