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The effective use and enjoyment rule (from Article 59a of the VAT Directive) derogates from the general rules according to which the place of supply of services should be determined according to Articles 44, 45, 56, 58 and 59 of the VAT Directive (for Article 58 it applies as from 1 January 2015).

Article 59a of the VAT Directive states that in order to prevent double taxation, non- taxation or distortion of competition, Member States may decide to shift the place of supply of services. Therefore Member States could consider the place of supply of any or all of those services, if situated within their territory, as being situated outside the EU if those services are effectively used and enjoyed outside the EU and vice versa.

The presumption in Article 24a allows a supplier to assume that the customer is established, has his permanent address or usually resides at the place of the location where the services are being supplied by him and where the customer is present in person because his physical presence is required for receiving those services.

As the physical presence of the customer at the location is needed for him to receive the services, it must be presumed that these services are effectively used and enjoyed at the place of that location. Services used and enjoyed elsewhere are likely to be the subsequent services supplied by a service provider other than the one supplying at the physical location. These subsequent services (for example downloads made over the Internet) referred to as ‘over the top’ services (see the glossary under point 1.6) are not covered by the presumption.

Taking into account the underlying assumption of effective use and enjoyment of the services at the location where they are rendered, the situations where this presumption could be rebutted as a result of the services effectively being used and enjoyed elsewhere will be very limited if any.

9. EVIDENCE FOR IDENTIFICATION OF LOCATION OF CUSTOMER AND REBUTTAL OF PRESUMPTIONS (ARTICLE 24F)

9.1. Relevant provisions

The relevant provision can be found in the VAT Implementing Regulation:

 Article 24f (subsection 3c)

Whenever reference is made to an article of the VAT Implementing Regulation, the reference to that particular legal act is omitted and only the article is mentioned.

9.2. Background

As from 1 January 2015, the supply of telecommunications, broadcasting and electronic services will, in all cases, be taxable at the place where the customer is established, has his permanent address or usually resides.

To clarify the tax treatment of B2C supplies, rebuttable presumptions for the location of the customer have been put in place.

9.3. Why was there a need for clarification?

Specific presumptions are put in place with guidance on what is the place of taxation in situations where the place where the customer belongs is practically impossible to determine or cannot be determined with certainty. Each specific presumption can be rebutted by the supplier on the basis of three items of non-contradictory evidence.

Where no specific presumption applies, it is presumed that the customer is established, has his permanent address or usually resides at the place identified as such by the supplier on the basis of two items of non-contradictory evidence.

In this context it was necessary to clarify what type of evidence could be used to identify the place where the customer belongs or to rebut a presumption.

9.4. What does the provision do?

For telecommunications, broadcasting or electronic services, Article 24f lists evidence which in particular should be used by the supplier to identify the place where his customer is established, has a permanent address or usually resides or which could be used by him to determine where that customer actually belongs.

The provision is relevant where, according to point (d) of Article 24b, it is presumed that the place where the customer belongs is that identified by the supplier as such on the basis of two items of non-contradictory evidence. It could also be relevant where, on the basis of three items of non-contradictory evidence, the supplier would want to rebut one of the specific presumptions.

This list of evidence is illustrative: the words ‘in particular’ are included to ensure that Member States and business are fully aware that it is an indicative, non-exhaustive list. Businesses operate different business models and the evidence that they collect in relation to their customers can differ.

For that reason, the list also includes a reference to ‘other commercially relevant information’. It allows for other items of information not specifically included in the list to be used as evidence for the identification of the place where the customer belongs and rebuttal of presumptions.

No one item of evidence suits all businesses nor would it necessarily be appropriate for the same items to be used in all circumstances. There is therefore no priority given to one or the other item of evidence included in the list. This should give sufficient flexibility for businesses so that the changes they will be facing in the run up to 2015 would be more limited.