Considerations on COM(2021)626 - Authorisation of Estonia to derogate from Article 26(1), point (a), and Articles 168 and 168a of the VAT Directive

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dossier COM(2021)626 - Authorisation of Estonia to derogate from Article 26(1), point (a), and Articles 168 and 168a of the VAT Directive.
document COM(2021)626 EN
date November 15, 2021
 
(1) Articles 168 and 168a of Directive 2006/112/EC establish a right for taxable persons to deduct value added tax (VAT) charged on supplies to them of goods and services that are used for the purposes of their taxed transactions. Pursuant to Article 26(1), point (a), of that Directive, the use of business assets for private use of taxable persons or their staff or, more generally, for purposes other than those of their business is to be treated as a supply of services.

(2) Council Implementing Decision 2014/797/EU 12 authorised Estonia to restrict to 50 % the right to deduct VAT on the purchase, leasing, intra-Community acquisition and importation of certain passenger cars and to relieve the taxable person from accounting for VAT on the non-business use of vehicles covered by the restriction until 31 December 2017.

(3) Council Implementing Decision 2017/1854/EU 13 extended the validity of Implementing Decision 2014/797/EU to 31 December 2020.

(4) By letter registered with the Commission on 12 February 2021, Estonia submitted a request to the Commission to be authorised to apply a special measure derogating from Article 26(1), point (a), and Articles 168 and 168a of Directive 2006/112/EC in order to restrict the right of deduction concerning the purchase, leasing, intra-Community acquisition and importation of certain passenger cars used for non-business purposes.

(5) In accordance with Article 395(2), second subparagraph, of Directive 2006/112/EU, the Commission informed the other Member States, by letter of 19 March 2021, of the request made by Estonia. By letter of 23 March 2021, the Commission notified Estonia that it had all the information it considered necessary for appraisal of the request.

(6) The non-business use of passenger cars is often very difficult to identify accurately and even where it is possible, the mechanism for doing so is often burdensome. Under the requested authorisation, the amount of VAT on expenditure eligible for deduction in respect of passenger cars which are not used entirely for business purposes should, with some exceptions, be set at a flat percentage rate. Based on currently available information, the Estonian authorities believe that a rate of 50 % is justifiable. At the same time, in order to avoid double taxation, the requirement of accounting for VAT on the non-business use of passenger cars should be suspended where those cars have been subject to a limitation. This simplification measure removes the need to keep records on private use of business cars and, at the same time, prevents tax evasion through incorrect record keeping.

(7) The limitation of the right of deduction under the requested authorisation should apply to VAT paid on the purchase, leasing, intra-Community acquisition and importation of specific categories of passenger cars and on expenditure related thereto, including the purchase of fuel.

(8) The requested authorisation should only apply to passenger cars with a maximum authorised weight not exceeding 3 500 kilograms and having not more than eight seats in addition to the driver's seat, since any non-business use of passenger cars exceeding 3 500 kilograms or having more than eight seats in addition to the driver's seat is negligible due to the nature of those passenger cars or the type of business they are used for. A detailed list of specific passenger cars excluded from that authorisation should also be provided, based on their particular use.

(9) The authorisation should be limited in time until 31 December 2024, in order to allow for a review of the necessity and effectiveness of the derogating measure and the apportionment rate between business and non-business use it is based on.

(10) Where Estonia considers that an extension of the authorisation beyond 2024 is necessary, it should submit, by 31 March 2024, to the Commission a request for an extension accompanied by a report which includes a review of the percentage applied.

(11) The derogation will only have a negligible effect on the overall amount of tax revenue collected at the stage of final consumption and will have no adverse impact on the Union’s own resources accruing from VAT.