Identifying where the customer belongs
Before you jump to conclusions, certain aspects of your business must be taken into consideration and some questions need to be asked, to determine if MOSS is what your business needs or if you even qualify for it. You need to make sure you are making cross border supplies of telecommunication, broadcasting and other electronically supplied services.
Identify your Customer.
Are they B2C supplies? Identify when C = non-taxable person.
Union scheme: a taxable person is a company, partnership or sole proprietor which has established its business or has a fixed establishment in the EU. The taxable person cannot use the mini One Stop Shop for supplies made in any Member State in which it has an establishment (business establishment or fixed establishment).
Non-Union scheme: a taxable person is a company, partnership or sole proprietor which has not established its business in the EU, nor has a fixed establishment there, and it is not registered or otherwise required to be identified for VAT in the EU.
Where does C belong?Correctly identifying where a customer belongs is a key issue. The new Implementing Regulations lay down a list of presumptions.
PLACE OF SUPPLY PRESUMPTIONS
1. TBES + accommodation
When TBES are provided with accommodation, services are deemed to be supplied at the place where the accommodation is located.
2. Physical location
When TBES are provided at a fixed location such as:
a telephone box
a telephone kiosk
a wi-fi spot
an internet café
a hotel lobby
services are deemed to be supplied at that location, provided the physical presence of the recipient is needed for the service to be provided.
Country of location in TBES supplied on board a ship, aircraft or train carrying out a passenger transport operation: Member State of departure of the passenger transport operation.
3. Fixed line
For TBES supplied via fixed land line, the place of supply will be the place of installation of the fixed land line.
4. Mobile networks
For TBES supplied through mobile networks, the place of supply will be the Member State identified by the mobile country code of the SIM card used when receiving those services.
5. Viewing cards
For TBES, for which the use of a decoder or similar device or a viewing card is needed and where a fixed land line is not used, the place of supply will be the place where the decoder or similar device is located, or if that place is not known. If that place was unknown, then the place of supply will be the place to which the viewing card is sent with a view to being used there.
When none of the presumptions contribute to identify where the customer belongs, a supplier should at least find two of the following pieces of evidence instead.
1. Billing address of the customer
2. Internet Protocol (IP) address of the device used by the customer or any method of geolocation.
3. Bank details, such as where the bank account is used for payment or what billing address of the customer is held by that bank.
4. Mobile Country Code (MCC) of the International Mobile Subscriber Identity (IMSI) stored on the Subscriber Identity Module (SIM) card used by the customer.
5.Location of customer’s fix land line through which the service is supplied to him.
6. Other commercially relevant information.
SUPPLIER IN ELECTRONIC SUPPLIES VIA MULTIPLE AGGREGATORS, MOBILE DEVICES & MARKET PLACES.
Who is the supplier in scenarios where supplies are made through telecommunication networks or online market places? What happens when supplies of services are made using third party agents or market places?
A service provider managing a portal/interface or supplying telecommunication services will be treated as acting in its own name unless it is explicitly indicated (and can be clearly demonstrated), both in terms of the contract and in the information provided to the customer, that some other party is supplying the service. Rebuttal of the provision is possible if certain conditions are met.
When a supplier who does not take part in the supply of electronic services or telephone services, only provides the processing of payments in respect of electronic services or telephone services provided over the Internet, including voice over Internet Protocol (VoIP), the transaction cannot fall within these provisions.
ON-GOING SUPPLIES SPANNING 1 JANUARY 2015
Supplies of services made on an on-going basis (such as subscriptions or memberships) will follow the following rule:
|Supply taking place||before 1 January 2015||after 1 January 2015|
|Place of supply||place where the supplier is established (regardless of when the supply or continuous supply is completed)||place where the customer is established/ has his permanent address or usually resides (regardless of when the supply or continuous supply started).|
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