On 27 June 2016, the Council of the European Union adopted a directive (the 'Voucher Directive') which aims to increase legal certainty for transactions involving vouchers by harmonising national VAT rules in the European Union. The Voucher Directive clarifies the VAT treatment of vouchers, reducing the risk of mismatches in national VAT legislation leading to double taxation, non-taxation or other undesired consequences. The Voucher Directive amends the VAT Directive (Directive 2006/112/EC) and needs implementation in the Member States' national legislation.
Up to now, no clear rules on the VAT treatment of vouchers existed. Instead, Member States developed their own rules which led to problems for both businesses and tax authorities on the correct application of VAT in various (cross border) cases. Most notably are cases where vouchers issued in one Member State are used in another Member State (eg travel, gift or lodging vouchers) with both Member States acknowledging different chargeable events.
Apart from eliminating situations of double taxation and uncertainty on tax compliance obligations, the Voucher Directive aims at closing tax avoidance loopholes resulting from mismatches between Member States.
Narrower in scope than in an earlier proposal of this Voucher Directive (already from 2012), the directive provides definitions on 'voucher', 'single-purpose voucher' (SPV) and 'multi-purpose voucher' (MPV):
- SPV: a voucher where the place of supply of the goods or services to which the voucher relates, and the VAT due on those goods or services, are known at the time of issue of the voucher; and
- MPV: a voucher, other than a single-purpose voucher.
The Voucher Directive differentiates between vouchers and various forms of payment services. Given the recent developments in the field of payment services, especially the increase in use of so-called 'mobile payments', the Voucher Directive arrived right on time and provides clarity as to what set of VAT rules apply.
The new provisions should not affect the VAT treatment of, inter alia, transport tickets, admission tickets to cinemas and museums, postage stamps and the like.
Interestingly, a separate definition of 'discount voucher' (vouchers carrying a right to receive a price discount or rebate with regard to a supply of goods or services) has now been removed and the discount vouchers seem to be excluded from these new VAT rules.
Single-purpose voucher Under the Voucher Directive, the transfer of a SPV is regarded as a supply of goods or services to which the voucher relates. In this regard, the actual supply of goods or services in return for the SPV as consideration is not regarded as an independent transaction for VAT purposes.
If the transfer of a SPV is made by a taxable person (eg a distributor) acting in the name of another taxable person, the transfer shall be regarded as a supply of the goods or services to which the voucher relates made by the other taxable person in whose name the taxable person is acting. In other words: distributors and agents, acting in the name of another person, are not regarded as taking part in the underlying supply. On the other hand, if a taxable person acts in his own name, he shall be deemed to be the supplier of the SPV, regardless whether he issued the SPV.
As mentioned above, the actual supply of goods or services in return for a SPV is not be regarded as an independent transaction. For MPV's, VAT is to be charged when the goods or services to which the MPV relates are supplied. Following this principle, any preceding transfer of an MPV is not subject to VAT.
If, however, a transfer of a MPV is made by a taxable person other than the taxable person carrying out the underlying transaction subject to VAT, any supply of services that can be identified, such as distribution or promotion services, shall be subject to VAT.
For SPV's, the taxable amount is everything which constitutes the consideration obtained or to be obtained by the supplier (eg the supply of goods or services to which the SPV relates).
For MPV's, the taxable amount of the supply of goods or services provided in respect of a MPV shall be equal to the consideration paid for the voucher or, in the absence of information on that consideration, the monetary value indicated on the MPV itself or in the related documentation, less the amount of VAT relating to the goods or services supplied.
Unredeemed multi-purpose vouchers
The Voucher Directive does not cover situations where a MPV is not redeemed by the final consumer during its validity period, and the consideration received for such voucher is kept by the seller. In December 2015, the Court of Justice of the European Union ruled in the joined cases Air France-KLM (C-250/14) and Hop!-Brit Air SAS (C-289/14) that under certain conditions such MPV may be subject to VAT. Crucial in this regard is whether the service for which (pre)payment is received has been effectively provided.
The Member States will have until 31 December 2018 to transpose the provisions of the Voucher Directive into national laws and regulations. These provisions will only apply to vouchers issued after that date.
The Voucher Directive is a welcome addition to the EU VAT legislation, given the changing landscape of the last years, particularly our ever more increasing digital footprint.
As vouchers come in various forms with specific characteristics. It is necessary to recognize, categorize and reorganize these various types of electronic and physical vouchers and, subsequently, align their VAT treatment across the EU.
Furthermore, the provisions regarding distributor(chain)-arrangements further help determining the VAT compliance aspects of such arrangements.