COMMISSION IMPLEMENTING REGULATION (EU) No 79/2012
of 31 January 2012
laying down detailed rules for implementing certain provisions of Council Regulation (EU) No 904/2010 concerning administrative cooperation and combating fraud in the field of value added tax
(recast)
THE EUROPEAN COMMISSION,
Having regard to the Treaty on the Functioning of the European Union,
Having regard to Council Regulation (EU) No 904/2010 of 7 October 2010 on administrative cooperation and combating fraud in the field of value added tax (1) and, in particular Articles 14, 32, 48 and 49 and Article 51(1) thereof,
Whereas:
(1)
To improve and supplement the instruments to combat fraud, Council Regulation (EC) No 1798/2003 of 7 October 2003 on administrative cooperation in the field of value added tax and repealing Regulation (EEC) No 218/92 (2) has been recast and repealed by Regulation (EU) No 904/2010. The rules as they can be found in Regulation (EU) No 904/2010 should be reflected at the level of the acts implementing Regulation (EU) No 904/2010.
(2)
Commission Regulation (EC) No 1925/2004 of 29 October 2004 laying down detailed rules for implementing certain provisions of Council Regulation (EC) No 1798/2003 concerning administrative cooperation in the field of value-added tax (3) has been substantially amended. Since further amendments are to be made following the adoption of Regulation (EU) No 904/2010 and in order to have a single set of rules on the exchange of information it should be recast in the interests of clarity together with Commission Regulation (EC) No 1174/2009 of 30 November 2009 laying down rules for the implementation of Articles 34a and 37 of Council Regulation (EC) No 1798/2003 as regards refunds of value added tax under Council Directive 2008/9/EC (4).
(3)
In order to facilitate the exchange of information between Member States it is necessary to specify the exact categories of information to be exchanged without prior request, as well as the frequency with which those exchanges are to be made, and the relevant practical arrangements. To the extent that Member States intend to abstain from such exchange, they should notify it to the Commission in accordance with Article 14(1) of Regulation (EU) No 904/2010.
(4)
Pursuant to Article 51 of Regulation (EU) No 904/2010 information shall be communicated between tax authorities as far as possible by electronic means. Consequently, the practical arrangements and technical details should be laid down.
(5)
Practical arrangements should be determined for the provision of information relating to invoicing rules, value added tax (VAT) rates applicable in the context of the special schemes applicable to non-established taxable persons and the additional electronic coded information referred to in Article 9(2) of Council Directive 2008/9/EC of 12 February 2008 laying down detailed rules for the refund of value added tax, provided for in Directive 2006/112/EC, to taxable persons not established in the Member State of refund but established in another Member State (5).
(6)
In order to ensure that Member States are able to effectively make use of the possibilities to require the information foreseen by certain provisions of Directive 2008/9/EC, it is necessary to specify the relevant harmonised codes to be applied when exchanging the relevant information, including the means through which such exchange should take place, in accordance with Regulation (EU) No 904/2010.
(7)
Article 9(2) of Directive 2008/9/EC provides that the Member State of refund may require the applicant to provide additional electronic coded information supplementing the codes set out in Article 9(1) of Directive 2008/9/EC, to the extent that such information is necessary due to any restrictions on the right of deduction under Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (6), or for the implementation of a derogation received by the Member State of refund under Article 395 or 396 of that Directive.
(8)
Pursuant to Article 48(2) of Regulation (EU) No 904/2010, the competent authorities of the Member State of refund are to notify by electronic means the competent authorities of the other Member States of any information required by them under Article 9(2) of Directive 2008/9/EC.
(9)
For that purpose, the technical details for the transmission of the additional information required by Member States under Article 9(2) of Directive 2008/9/EC should be determined. In particular, the codes to be used for the transmission of this information should be specified. The codes set out in Annex III to this Regulation have been developed by the Standing Committee on Administrative Cooperation (SCAC) on the basis of the information required by Member States for the purposes of applying Article 9(2) of Directive 2008/9/EC.
(10)
Applicants may be required according to Article 11 of Directive 2008/9/EC to provide a description of their business activity using harmonised codes. For that purpose, the commonly used codes provided for in Article 2(1)(d) of Regulation (EC) No 1893/2006 of the European Parliament and of the Council of 20 December 2006 establishing the statistical classification of economic activities NACE Revision 2 and amending Council Regulation (EEC) No 3037/90 as well as certain EC Regulations on specific statistical domains (7) should be employed.
(11)
Article 25 of Regulation (EU) No 904/2010 states that the requested authority shall, at the request of the requesting authority, notify the addressee of all instruments and decisions emanating from the administrative authorities and concerning the application of VAT legislation in the Member State in which the requesting authority is established.
(12)
Where a Member State of refund requests the Member State of establishment to notify the applicant of its decisions and instruments for the purposes of the application of Directive 2008/9/EC, for reasons of data protection, it should be possible that such notification be made via the common communication network/common system interface (CCN/CSI) as defined in Article 2(1)(q) of Regulation (EU) No 904/2010.
(13)
Rules should be laid down implementing, inter alia, Article 48 of Regulation (EU) No 904/2010 as regards the introduction of administrative cooperation and the exchange of information concerning the rules relating to the place of supply of services, the special schemes and the refund procedure for value added tax.
(14)
Finally, it is necessary to establish a list of the statistical data needed for the evaluation of Regulation (EU) No 904/2010.
(15)
The measures provided for in this Regulation are in accordance with the opinion of the Standing Committee on Administrative Cooperation,
HAS ADOPTED THIS REGULATION:
Article 1
Subject matter
This Regulation lays down detailed rules for implementing Articles 14, 32, 48 and 49 and Article 51(1) of Regulation (EU) No 904/2010.
Article 2
Categories of information to be exchanged without prior request
The categories of information subject to automatic exchange, in accordance with Article 13 of Regulation (EU) No 904/2010, shall be the following:
(1)
information on non-established traders;
(2)
information on new means of transport.
Article 3
Subcategories of information to be exchanged without prior request
1. In respect of non-established traders the information subject to automatic exchange shall be the following:
(a)
information on the allocation of VAT identification numbers to taxable persons established in another Member State;
(b)
information on VAT refunds to taxable persons not established in the Member State of refund but established in another Member State pursuant to Council Directive 2008/9/EC.
2. In respect of new means of transport, the information subject to automatic exchange shall be the following:
(a)
information on supplies exempted in accordance with Article 138(2)(a) of Directive 2006/112/EC, of new means of transport as defined in Article 2(2), (a) and (b)of that Directive, by persons regarded as taxable persons pursuant to Article 9(2) of that Directive who are identified for VAT purposes;
(b)
information on supplies exempted in accordance with Article 138(2)(a) of Directive 2006/112/EC, of new vessels and aircraft as defined in Article 2(2), (a) and (b) of that Directive, by taxable persons identified for VAT purposes, other than those referred to in point (a), to persons not identified for VAT purposes;
(c)
information on supplies exempted in accordance with Article 138(2)(a) of Directive 2006/112/EC, of new motorised land vehicles as defined in Article 2(2), (a) and (b) of that Directive, by taxable persons identified for VAT purposes, other than those referred to in point (a), to persons not identified for VAT purposes.
Article 4
Notification of abstention from participation in the exchange of information without prior request
By 20 May 2012 each Member State shall notify the Commission in writing of its decision, taken in accordance with the second subparagraph of Article 14(1) of Regulation (EU) No 904/2010, as to whether it is going to abstain from taking part in the automatic exchange of one or more categories or subcategories of information referred to in Articles 2 and 3 of this Regulation. The Commission shall inform the other Member States accordingly of the categories for which a Member State has abstained.
Article 5
Frequency of the transmission of the information
In cases where the automatic exchange system is being used, information concerning the categories and subcategories referred to respectively in Articles 2 and 3 shall be provided as soon as it becomes available, and in any event within 3 months of the end of the calendar quarter during which that information has become available.
Article 6
Transmission of communications
1. Information communicated pursuant to Regulation (EU) No 904/2010 shall, as far as possible, be transmitted only by electronic means via the CCN/CSI network, with the exception of the following:
(a)
the request for notification referred to in Article 25 of Regulation (EU) No 904/2010 and the instrument or decision of which notification is requested;
(b)
original documents provided pursuant to Article 9 of Regulation (EU) No 904/2010.
2. The competent authorities of the Member States may agree to communicate the information referred to in points (a) and (b) of paragraph 1 by electronic means.
Article 7
Information to taxable persons
1. Member States shall provide the details on invoicing listed in Annex I to this Regulation in accordance with Article 32 of Regulation (EU) No 904/2010 via the web portal established by the Commission.
2. The Commission shall make the web portal referred to in paragraph 1 available for those Member States choosing to publish the following additional information:
(a)
the information on storage of invoices listed in Annex II;
(b)
the additional electronic coded information required by Member States pursuant to Article 9(2) of Directive 2008/9/EC;
(c)
until 31 December 2014 the standard tax rate referred to in the second paragraph of Article 42 of Regulation (EU) No 904/2010;
(d)
as from 1 January 2015 the tax rate applicable for supplies of telecommunication services, broadcasting services and electronically supplied services referred to in the second paragraph of Article 47 of Regulation (EU) No 904/2010.
Article 8
Information exchanged in the framework of VAT refund
Where a Member State of refund notifies other Member States that it requires additional electronic coded information as provided for in Article 9(2) of Directive 2008/9/EC, the codes specified in Annex III to this Regulation shall be used for the purposes of transmitting this information.
Article 9
Description relating to the business activity exchanged in the framework of VAT refund
Where a Member State of refund requires a description of the applicants business activity as provided for in Article 11 of Directive 2008/9/EC, such information shall be given at the fourth level of the NACE Rev. 2 codes, as provided for in Article 2(1)(d) of Regulation (EC) No 1893/2006.
Article 10
Notification of instruments and decisions relating to a VAT refund
Where a Member State of refund requests a Member State of establishment of an addressee to notify instruments and decisions relating to a refund under Directive 2008/9/EC to the addressee, that notification request may be transmitted via the CCN/CSI network as defined in Article 2(1)(q) of Regulation (EU) No 904/2010.
Article 11
Statistical data
The list of statistical data referred to in Article 49(3) of Regulation (EU) No 904/2010 is set out in Annex IV.
Each Member State shall, before 30 April each year by electronic means, communicate to the Commission the statistical data referred to in the first paragraph, using the model set out in Annex IV.
Article 12
Communication of national measures
Member States shall communicate to the Commission the text of any laws, regulations or administrative provisions which they apply in the field covered by this Regulation.
The Commission shall communicate those measures to the other Member States.
Article 13
Repeal
Regulations (EC) No 1925/2004 and (EC) No 1174/2009 are repealed.
References to the repealed Regulations shall be construed as references to this Regulation and shall be read in accordance with the correlation table in Annex VI.
Article 14
Entry into force
This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 31 January 2012.