Grænsehandel - hvor går grænsen? En analyse af dansk praksis på området for grænsehandelskoncepter i forhold til EU

Michelle Maria Schnell

Student thesis: Master thesis

Abstract

Within the European Union largely similar rules apply regarding VAT. These rules are based on the Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, thereby creating a common system of VAT. However an area not yet fully hamonized is the VAT rates of the Member States, which are still differentiated. This gives way for utilization by companies establishing an arrangement of cross border trade by relocating the place of supply to a Member State with a lower VAT rate and thereby attaining a competitive advantage. The Danish tax authorities have become aware of this problem and will not recognize these arrangements. Recently, the Danish tax authorities initiate upheld in the Supreme Court of Denmark, which led to the reclassification of such an arrangement, on the grounds of non consistency between the formal designation of the transactions and the objective circumstances. Since then the Danish tax authorities have ruled in accordance with this criteria and the recent case-law bears witness to an increasingly stringent assessment of these cross border arrangements. Furthermore the Danish tax authorities has stated, that such arrangements can be redefined based on another criteria being that of abuse practice. However, in order for Danish case-law to be legitimate it must be in compliance with EU-law. The European Court of Justice (ECJ) has made several judgements of preliminary ruling regarding these criteria in relation to VAT. A review of ECJ case-law thus illustrates the legitimacy of these criteria in relation to VAT. A more detailed analysis of the conditions under which the first criteria is applied by the ECJ in case C-185/01 Auto Lease however shows, that this criteria cannot necessarily be applied on cross border arrangements as is the case in Denmark. With regard to abuse the EJC states in Case 255/02 Halifax, that in the sphere of VAT an abusive practice can be found to exist only if two conditions are met, one of which being that the transactions concerned result in the attainment of a tax advantage, the grant of which would be contrary to the purpose of the relevant provisions.1 This condition will not be met by companies engaging in place of supply planning, as these provisions have the sole purpose of determining the place of supply unambiguously.

EducationsMSc in Auditing, (Graduate Programme) Final Thesis
LanguageDanish
Publication date2012
Number of pages75