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 see that the payment function of the support bundle is an end in itself for the average consumer. It is important here that the introduction of the ‘support bundle’ was a unilateral action by the interested party, which did not lead to additional turnover for the interested party. After all, the ‘support bundle’ has become part of the existing subscriptions for the prices already paid for it. The Court considers adding a ‘support bundle’ whereby the price the consumer pays for the subscription remains unchanged as an element that is an attractive extra for the average consumer. The secondary status of this is confirmed by the fact that only 0.38% of the ‘support bundle’ (€ 31,704.99 / (8,279,683.24 + 31,704.99)) is actually used by the subscription holders. Finally, the payment function of the ‘support bundle’ cannot be purchased or used separately from the other telecommunication services provided by the interested party. The conclusion is that the right to use the telecommunication services offered by the interested party is the main performance and that the payment function of the ‘support bundle’ is an additional element that shares 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
