IE
S.I. No. 520/2009 - European Communities (Value-added Tax) Regulations 2009
Table of Provisions (30)
Statutory Text (30 Articles)
1. For the purposes of this Schedule—
‘applicant’ means a taxable person who—
(
a
) not being established in the Member State of refund, but being established in another Member State, and
(
b
) having entered into transactions that give rise to a right of deduction in that other Member State,
makes a refund application;
‘deductible transactions’ means transactions that give rise to a right of deduction in the Member State concerned;
‘Member State of refund’, in relation to an applicant, means the Member State in which value-added tax (as referred to in the Council Directive 2006/112/EC 10
) was charged to the applicant in respect of—
(
a
) goods or services supplied to the applicant by other taxable persons in that Member State, or
(
b
) the importation of goods into that Member State;
‘non-deductible transactions’ means transactions that do not give rise to a right of deduction in the Member State concerned;
‘refund application’ means an electronic application submitted after 31 December 2009 for a refund of tax charged in the Member State of refund to an applicant in respect of goods or services supplied to the applicant by taxable persons in that Member State or in respect of the importation of goods into that Member State.
Revenue Commissioners to make refund of VAT in certain cases
2. The Revenue Commissioners shall, in accordance with this Schedule and the regulations (if any), make a refund to an applicant of tax charged to the applicant by accountable persons in the State or tax charged to that applicant on the importation of goods into the State, in cases where a full and correct refund application has been received by them from the Member State in which the applicant is established.
How the amount of refund is to be calculated
3. (1) When the State is the Member State of refund, the amount of tax that is refundable in accordance with paragraph 2 is (subject to subparagraph (2) of this paragraph) the amount of tax charged to an applicant by an accountable person in respect of supplies of goods or services in the State, or on the importation of goods by the applicant into the State, where those goods or services are used by the applicant for the purpose of the applicant’s business, but only to the extent that the applicant would be able to deduct that amount under section 12 if the applicant were an accountable person in the State.
(2) If an applicant undertakes in the applicant’s Member State of establishment both deductible transactions and non-deductible transactions, the amount to be refunded by the Member State of refund is the proportion of tax attributable to the deductible transactions as determined in accordance with the law of the applicant’s Member State of establishment.
How an application for refund can be made
4. An applicant who wishes to claim a refund of tax may apply for the refund only through the electronic portal set up for the purpose by the applicant’s Member State of establishment.
Applicant to make correction to application when deductible proportion is later adjusted
5. (1) When an applicant who carries out transactions of the kind referred to in subparagraph (2) of paragraph 3 makes a refund application and the proportion of tax referred to in that subparagraph is subsequently adjusted, the applicant shall make a correction to the original amount that was applied for or has already been refunded.
(2) The applicant shall make the correction in a refund application during the calendar year following the period for which the relevant refund application was made or, if the applicant makes no refund applications during that calendar year, by lodging a separate declaration via the electronic portal established by the Member State of establishment of the applicant.
What a refund application must cover
6. (1) When the State is the Member State of refund, the applicant shall ensure that the refund application covers tax charged in respect of supplies of goods or services invoiced to the applicant and importations by the applicant during a refund period, being a period of not more than 1 calendar year and not less than 3 calendar months. However, a refund period may be less than 3 calendar months if the application in respect of the period relates to the last quarter of a calendar year.
(2) A refund application may be lodged only on or before 30 September in the calendar year following the refund period.
(3) A refund application may cover tax charged in respect of transactions omitted from the applicant’s previous refund applications, but only if those transactions were completed during the relevant calendar year.
Restriction on amounts that can be claimed in a refund application
7. (1) An applicant is not entitled to make a refund application under this Schedule for an amount less than €400 if the claim is for a period of less than 1 calendar year and not less than 3 months.
(2) An applicant is not entitled to make a refund application under this Schedule for an amount less than €50 if the claim is for a period that represents a full calendar year or the last quarter of a calendar year.
Revenue Commissioners to notify applicant of decision not to forward application to other Member State
8. As soon as practicable after deciding not to forward to another Member State a refund application made by an applicant established in the State on the grounds that the applicant is not entitled to a refund, the Revenue Commissioners shall notify the decision to the applicant by electronic means.
Action to be taken by Revenue Commissioners on receipt of refund application
9. (1) This paragraph applies to a refund application in respect of which the State is the Member State of refund.
(2) As soon as practicable after receiving from an applicant a refund application to which this paragraph applies, the Revenue Commissioners shall, by electronic means, notify the applicant of the date on which they received the application.
(3) Within 4 months after the date on which they received a refund application from an applicant, the Revenue Commissioners shall, except as otherwise provided by this paragraph—
(
a
) decide whether or not to approve the application (whether wholly or partially), and
(
b
) notify their decision to the applicant by electronic means.
(4) At any time within 4 months after the date on which they received a refund application from an applicant established in another Member State, the Revenue Commissioners may request additional information in support of the details provided in the application. Such a request may be made to the applicant, the competent authority of the Member State where the applicant is established or from any other person whom the Revenue Commissioners reasonably believe to be capable of providing relevant information.
(5) If the Revenue Commissioners request additional information in accordance with subparagraph (4), they shall, except when subparagraph (7) applies—
(
a
) decide whether or not to approve the application (whether wholly or partially), and
(
b
) notify their decision to the applicant by electronic means,
within 2 months after the relevant date.
(6) For the purpose of this paragraph, the relevant date is—
(
a
) if the Revenue Commissioners receive the requested information within 1 month after the date on which the request was notified to the recipient — the date on which the Revenue Commissioners received the additional information, or
(
b
) if the Revenue Commissioners do not receive the requested information within 1 month after the date on which the request was made to the recipient — the date on which that period ends, or
(
c
) if the Revenue Commissioners receive the requested information within 1 month referred to in subparagraph (
a
), or that period expires without the Revenue Commissioners having received that information — the date that is 6 months after the date on which the refund application was made.
(7) Whenever the Revenue Commissioners consider it necessary to do so, they may, at any time before they make a decision with respect to a refund application, request any of the persons mentioned in subparagraph (4) to provide further additional information concerning the application or the applicant.
(8) If the Revenue Commissioners request further additional information with respect to a refund application or the applicant as provided by subparagraph (7), they shall—
(
a
) decide whether or not to approve the application (whether wholly or partially), and
(
b
) notify their decision to the applicant by electronic means,
within 8 months after the date on which they received the refund application.
(9) If the Revenue Commissioners have reasonable doubts about the validity or accuracy of a refund application, they may request the original or a copy of the relevant invoice or importation document to be produced for inspection.
(10) Without limiting the grounds on which the Revenue Commissioners may refuse a refund application, they may refuse to approve such an application on the ground that a request made by them under this paragraph has been refused or has not been complied with within a reasonable time.
(11) If the Revenue Commissioners notify an applicant of their decision to approve a refund application either wholly or partially, they shall refund the amount due not later than 10 working days after the notification of the decision to the applicant.
(12) If the Revenue Commissioners decide to refuse to approve a refund application either wholly or partially, they shall include in their decision the grounds for the refusal.
Revenue Commissioners to deduct bank charges from refund amount
10. If the State is the Member State of refund, and the applicant requests payment of the refund to be made in another Member State, the Revenue Commissioners shall deduct from the refund amount any bank charges in respect of the payment.
Applicant to repay refunded amount if based on incorrect refund application
11. (1) An applicant who has obtained a refund from the Revenue Commissioners based on an incorrect refund application containing an erroneous claim or declaration (whether or not the error was made intentionally, recklessly or carelessly) shall—
(
a
) repay to the Revenue Commissioners the amount incorrectly obtained as a refund, and
(
b
) pay an amount of interest to the Revenue Commissioners.
(2) Any such interest is to be calculated at the rate provided for in section 21(1)(
b
) from the date on which the refund was made to the day on which the applicant repays to the Revenue Commissioners the amount incorrectly obtained as a refund.
(3) The liability imposed on an applicant by this paragraph is in addition to the liability imposed by section 27A (Penalty for deliberately or carelessly making incorrect returns, etc).
Revenue Commissioners to withhold payment of refund while repayment of incorrectly paid refund remains outstanding
12. While an applicant to whom paragraph 11 applies continues to fail to pay the Revenue Commissioners an amount payable under that paragraph, the Revenue Commissioners shall withhold any further refund to that applicant up to the amount that is due from the applicant under that paragraph.
Revenue to pay interest in respect of amounts not refunded on time
12F. The special scheme for intra-Community refunds of tax as set out in the Ninth Schedule has effect.”
Amendment of section 13 of Principal Act (Remission of tax on goods exported, etc.)
13. (1) If the Revenue Commissioners refund an amount due to an applicant but not within the time limits prescribed by paragraph 9, they shall pay an amount of interest to the applicant calculated at the rate provided for in section 21A (4) from the day following the last day of the period within which payment of the amount due is required to be made to the day on which the amount due is paid to the applicant.
(2) Subparagraph (1) does not apply if the applicant—
(
a
) provides additional information in accordance with a request made by the Revenue Commissioners but not within 1 month after the date on which the request was notified to the applicant, or
(
b
) fails to provide all of the additional information requested within that period.
Non application of this Schedule in certain circumstances
14. This Schedule does not apply to—
(
a
) an applicant who supplies goods or services in respect of which the place of supply is the Member State of refund other than those for which the person who receives them is liable, or
(
b
) a transport service, or a service ancillary to such a service, that is exempted in the Member State of supply in accordance with Article 144, 146, 148, 149, 151, 153, 159 or 160 of Council Directive 2006/112/EC 11
”.
GIVEN under my Official Seal,
7 December 2009.
BRIAN LENIHAN,
Minister for Finance.
EXPLANATORY NOTE
(This note is not part of these Regulations and does not purport to be a legal interpretation.)
These Regulations give effect to certain provisions of the following Council Directives
(
a
) Directive 2008/8/EC of 12 February 2008 (OJ No. L 44 of 20 February 2008), which deals with the place of supply (taxation) of services;
(
b
) Directive 2008/9/EC of 12 February 2008 (OJ No. L 44 of 20 February 2008), which replaces Council Directive 79/1072/EEC (the Eighth Directive 12
) and deals with refunds to foreign traders;
12 OJ L331 of 27 December 1979, p. 11
(
c
) Directive 2008/117/EC of 16 December 2008 (OJ No L 14 of 20 January 2009), which deals with anti-fraud measures.
In relation to Directive 2008/8/EC, these Regulations introduce two general rules, the application of which depends on whether the customer is a business or a consumer. They also provide that suppliers of B2B reverse charge services across Community borders must file a VIES return for those services supplied on or after 1 January 2010.
In relation to Directive 2008/9/EC, these Regulations replace the current procedure with a new electronic procedure.
In relation to Directive 2008/117/EC, these Regulations provide that with effect from 1 January 2010 VIES returns must, as a general rule, be made by traders on a monthly basis.
1 OJ No. L 347 of 11 December 2006, p. 1
2 OJ No. L 44 of 20 February 2008, p. 11
3 OJ No. L 44 of 20 February 2008, p. 23
4 OJ No. L 14 of 20 January 2009, p. 7
5 See Note 1
6 See Note 2
7 See Note 3
8 See Note 4
9 OJ No. L44 of 20.2.2008, p. 23
10 OJ L 347 of 11 December 2006, p. 1
11 OJ No. L 347 of 11 December 2006, p. 1
12 OJ L331 of 27 December 1979, p. 11
15. Section 12E of the Principal Act is amended by substituting the following subsection for subsection (1)
“(1) This section applies to capital goods—
(
a
) on the supply or development of which tax was chargeable to a taxable person who carries on a business in the State, or
(
b
) on the supply of which tax would have been chargeable to a taxable person who carries on a business in the State but for the application of section 3(5)(
b
)(iii),”.
New section 12F inserted into Principal Act
16. The Principal Act is amended by inserting the following section after section 12E
“Special scheme for intra-Community refunds of tax
17. Section 13 of the Principal Act is amended as follows
(
a
) by substituting the following paragraph for subsection (3)(
b
)
“(
b
) This subsection applies to a person who satisfies the Revenue Commissioners that the person—
(i) carries on a business outside the Community, and
(ii) supplies no goods or services in the State (other than services for which, in accordance with section 8(1A)(
aa
), (
ab
), (
f
) or (
g
) or (1B)(
b
) or (2), the person to whom they are supplied is solely liable for the tax that is chargeable).”;
(
b
) in subsection (3)(
c
), by deleting “or in respect of motor vehicles (as defined in section 12(3)(
b
) for hiring out for utilisation within the State”.
Amendment of section 14 of Principal Act (Determination of tax due by reference to cash receipts)
18. Section 14 of the Principal Act is amended by substituting the following subsection for subsection (3)
“(3) This section does not apply to tax provided for by section 2(
b
), (
d
), or (
e
).”.
Amendment of section 15 of Principal Act (Charge of tax on imported goods)
19. Section 15 of the Principal Act is amended in subsection (6A) by substituting “section 2(
b
)” for “section 2(1)(
b
)”;
Amendment of section 15A of Principal Act (Goods in transit)
19A. (1) In this section, ‘intra-Community supplies of goods’ means supplies of goods to a person registered for value-added tax in another Member State.
(2) An accountable person shall, not later than the deadline fixed by this section, lodge with the Revenue Commissioners a statement of the person’s intra-Community supplies of goods. The statement must be prepared in accordance with, and contain such particulars as may be specified in, the regulations (if any).
(3) In the case of intra-Community supplies of goods made during a calendar month, the deadline referred in to subsection (2) is the 23rd day of the month immediately following the end of that calendar month. This subsection does not apply to intra-Community supplies of goods in respect of which an authorisation has been given under subsection (4) or when an accountable person elects to lodge statements as permitted by subsection (5).
(4) The Revenue Commissioners may, on written request, authorise an accountable person who makes no supplies of the kind referred to in section 19AA but who makes intra-Community supplies of goods that do not exceed, or are not likely to exceed, in a calendar year, an amount or amounts specified in the regulations (if any), to lodge by 23 January following that calendar year a statement setting out details of those intra-Community supplies of goods. Such a statement must be prepared in accordance with, and contain such particulars as may be specified in, the regulations (if any).
(5) If, when subsection (4) does not apply, the total value of an accountable person’s intra-Community supplies of goods for a period of a calendar quarter, or of any of the previous 4 calendar quarters, does not exceed the prescribed threshold, that person may lodge a statement setting out details of those supplies not later than the 23rd day of the month immediately following the quarter during which the supplies were made. However, should the value of those supplies exceed the prescribed threshold in any month, the deadline for lodging a statement in respect of those supplies is as provided by subsection (3).
(6) For the purposes of this section, the prescribed threshold is €100,000 or, on and from 1 January 2012, €50,000.
(7) An accountable person who has made no intra-Community supplies of goods during a relevant period, but was required to lodge with the Revenue Commissioners a statement in respect of a previous period, shall, unless otherwise authorised by those Commissioners, lodge with them before the relevant deadline a statement to the effect that the person made no such supplies during that period.
Accountable person to lodge statement of intra-Community supplies of taxable services
19AA. (1) In this section, ‘intra-Community supplies of services’ means supplies of services to a person registered for value-added tax in another Member State.
(2) An accountable person shall, not later than the deadline fixed by this section, lodge with the Revenue Commissioners a statement of the person’s supplies of taxable services to a customer registered for value-added tax in another Member State whenever that customer is liable to pay the tax as provided by Article 196 of Council Directive 2006/112/EC. The statement must be prepared in accordance with, and contain such particulars as may be specified in, the regulations (if any).
(3) In the case of intra-Community supplies of services made during a calendar quarter, the deadline referred to in subsection (2) is the 23rd day of the month immediately following the end of that quarter, except where the accountable person elects to lodge statements monthly as provided by subsection (4).
(4) An accountable person who makes intra-Community supplies of services may elect to lodge statements of details of those services monthly, in which case the deadline for lodging those statements is not later than the 23rd of each calendar month immediately following the month in which the supplies are made.
(5) For the purposes of statements to be lodged in accordance with subsection (2), services that are supplied continuously over a period of more than 1 year, in respect of which no statements of account or payments are made during that year, are to be regarded as being completed at the end of each calendar year until the date when the supply is finally completed.
(6) An accountable person who has made no intra-Community supplies of services to which this section applies during a relevant period, but who was required to lodge with the Revenue Commissioners a statement in respect of a previous period, shall, unless otherwise authorised by those Commissioners, lodge with them before the relevant deadline a statement to the effect that the person made no such supplies during that period.”.
Amendment of section 25 of Principal Act (Appeals)
20. Section 15A of the Principal Act is amended as follows
(
a
) in subsection (1)(
b
), by substituting “section 2(
b
)” for “section 2(1)(
b
)”;
(
b
) in subsection (3), by substituting “section 2(
b
)” for “section 2(1)(
b
)”.
Amendment of section 15B of Principal Act (Goods in transit (additional provisions))
21. Section 15B of the Principal Act is amended, in subsections (1)(
b
) and (5), by substituting “section 2(
b
)” for “section 2(1)(
b
)”.
Amendment of section 19 of Principal Act (Tax due and payable)
22. Section 19 of the Principal Act is amended as follows
(
a
) in subsection (1), by substituting “section 2(
a
) or (
c
)” for “section 2(1)(
a
)”;
(
b
) in subsection (1A), by substituting “section 2(
d
) or (
e
)” for “section 2(1A);
(
c
) in subsection (2), by substituting “section 2(
a
) or (
c
)” for “section 2(1)(
a
)”;
(
d
) in subsection (2B), by substituting “section 2(
a
) or (
c
)” for “section 2(1)(
a
)”.
Substitution of section 19A of Principal Act by new sections 19A and 19AA
23. The Principal Act is amended by substituting the following sections for section 19A
“Accountable person to lodge statement of intra-Community supplies of goods
24. Section 25 of the Principal Act is amended as follows
(
a
) in subsection (1), by inserting the following paragraph after paragraph (
af
)
“(
ag
) the refusal to approve (either wholly or partially) a refund application made under the Ninth Schedule,”;
(
b
) by inserting the following subsection after subsection (1)
“(1AA) For the purpose of subsection (1)(
ag
), a failure by the Revenue Commissioners to make a decision in respect of a refund application within the time limits set out in paragraph 9 of the Ninth Schedule is to be treated as a decision to refuse the application.”.
Amendment of section 32 of Principal Act (Regulations)
25. Section 32 of the Principal Act is amended as follows
(
a
) in subsection (2A), by deleting “section 5(7)”;
(
b
) in subsection (2B), by inserting the following paragraph after paragraph (
b
)
“(
ba
) Council Directive 2008/9/EC of 12 February 2008 9
, and”.
Repeal of Fourth Schedule
26. The Principal Act is amended by repealing the Fourth Schedule to that Act.
New Ninth Schedule inserted
27. The Principal Act is amended by inserting the following Schedule after the Eighth Schedule
Section 12F
“NINTH SCHEDULE SPECIAL SCHEME FOR INTRA-COMMUNITY REFUNDS OF TAX
Definition of terms used in this Schedule
S.I. No. 520 of 2009
EUROPEAN COMMUNITIES (VALUE-ADDED TAX) REGULATIONS 2009
ARRANGEMENT OF REGULATIONS