Komparativ analyse: Af begreberne selvstændig økonomisk virksomhed og selvstændig erhvervsmæssig virksomhed i hhv. moms- og skatteret

Pernille Mai Andersen

Student thesis: Master thesis

Abstract

Within Danish VAT and tax law two parallel systems exist. Consequently two separate sets of rules exist and sometimes consistency between the VAT and tax law is not apparent. Whether or not a business is eligible for tax and VAT deductions is influenced by the Danish terms “selvstændig økonomisk virksomhed” (independent economical activity) and “selvstændig erhvervsmæssig virksomhed” (independent business activity) within VAT and tax law. Up until now it has been assumed that the assessment of a business in relation to tax law as to whether or not the business is an independent business activity, will set a precedent for how the business will be assessed in relation to VAT law. In practice, the TfS 1997.639 ruling by the Tax Department has changed this so that it relies on an independent tax law assessment as to whether a business is an independent business activity, and an independent VAT law assessment as to whether the business is an independent economical activity. The Tax Department's ruling is based in part on the ruling in the INZO case by the Court of Justice of the European Community (hereafter “The Court”). When making comparisons within tax and VAT law, it is important to note that VAT law in Denmark and other EU member countries is based upon the Sixth Council Directive of 17th May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes (Sixth VAT Directive). The sixth VAT directive forms the foundation of the harmonisation of the VAT laws in the EU member countries. On January 1st 2007 the Council Directive 2006/112/EC (“Momssystemdirektivet”) replaced the Sixth VAT Directive. No harmonisation has yet taken place on tax law within the European Union. When comparing the VAT term “independent economical activity” with the tax term “independent business activity”, the single most important difference appears to be the following phrase in Council Directive 2006/112/EC Article 9: “.. whatever the purpose or results of that activity”. In practice this influences in particular initial expenses and businesses that are not considered an independent business activity in a legal sense. Furthermore, the VAT legal term economic activity is more far reaching than the tax legal term business activity. Furthermore, differences regarding deductibility can be traced back to the differences in the underlying intentions in tax and VAT law. The Neutrality Criterion in VAT law is considered of special importance in this respect.

EducationsMSc in Auditing, (Graduate Programme) Final Thesis
LanguageDanish
Publication date2008
Number of pages80