133 tal-2009 - Regolamenti tal-2009 li jemendaw it-Tielet Skeda li tinsab ma’ l-Att dwar it-Taxxa fuq il-Valur Miżjud

L.N. 133 of 2009

VALUE ADDED TAX ACT

(CAP. 406)

Value Added Tax (Third Schedule) (Amendment)

Regulations, 2009

IN virtue of the powers conferred by articles 7 and 75 of the

Value Added Tax Act, the Minister of Finance, the Economy and

Investment has made the following regulations

(1) The title of these regulations is the Value Added Citation and scope.

Tax (Third Schedule) (Amendment) Regulations, 2009 and these

shall be read and construed as one with the Third Schedule to the

Value Added Tax Act, which Third Schedule is hereinafter in these

regulations referred to as “the Schedule”.

(2) These regulations bring into force the provisions of

Council Directive 2008/8/EC of the 12th February 2008 amending

Council Directive 2006/112/EC as regards the place of supply of

services.

As of the 1st January 2010, the Schedule shall be

substituted as follows

“THIRD SCHEDULE

(Article 7)

Place of Supplies, Intra-Community Acquisitions and

Importations

Part One

Place of supply of goods

Supply of goods: general rule

1. Except as otherwise provided in this Schedule –

(a) a supply of goods that are not transported takes

place where the goods are at the time when they are placed at

the disposal of the person acquiring those goods;

(b) a supply of goods that are transported takes place

where the goods are at the time when the transport of those

goods begins;

(c) when the transport of goods begins outside the

Community and ends in a Member State the supply of those

goods by the importer and any subsequent supply up to the

acquisition of those goods takes place in the Member State

where they are imported.

Goods installed or assembled

2. A supply of goods that are installed or assembled, with

or without a trial run, by or on behalf of the supplier takes place

where the goods are installed or assembled.

Goods supplied on board ships, aircraft or trains

A supply of goods on board ships, aircraft or trains during

the part of a transport of passengers effected in the Community

takes place at the point of departure of the transport of passengers

and, for the purpose of this item -

(a) “part of the transport of passengers effected in the

Community” means the part of the transport effected, without

a stop in a third territory, between the point of departure and

the point of arrival of the transport of passengers;

(b) “the point of departure of the transport of

passengers” means the first point of passenger embarkation

foreseen within the Community, where relevant after a leg

outside the Community;

(c) “the point of arrival of the transport of passengers”

means the last point of disembarkation of passengers foreseen

within the Community of passengers who embarked in

the Community, where relevant before a leg outside the

Community;

(d) a return trip shall be treated as a separate trip.

Distance sales

(1) A distance sale means an intra-community supply of

goods transported by or on behalf of the supplier which satisfies all

the following conditions

(a) the goods are not

(i) new means of transport; or

(ii) goods that are installed or assembled by or

on behalf of the supplier in the Member State where the

transport ends; or

(iii) goods that are supplied under a transaction

subject to a margin scheme on second hand goods,

works of art, collectors’ items and antiques in the

Member State where the transport begins;

(b) when the transport ends in Malta, the goods are

acquired by a person who is not registered under article 10 or

article 12;

(c) when the goods are transported from Malta the

purchaser is not identified on the invoice for that sale by

a value added tax identification number assigned by the

Member State where the transport ends.

(2) A distance sale takes place in the Member State

where the transport of the goods in question ends, provided that a

distance sale of goods which are not excise goods shall be treated

as taking place in the Member State from where the goods are

transported if the following conditions are met

(a) in the case goods transported to Malta -

(i) the total value of supplies of goods transported

to Malta by the same supplier during the year in which

the distance sale takes place, including the value of the

distance sale in question, or during the calendar year

immediately preceding that year does not exceed the

Distance Sales threshold determined in accordance with

Part Three of the Sixth Schedule; and

(ii) the supplier has not made a valid election in

the Member State from where the goods are transported

in terms of which the distance sale is to be treated as

taking place in Malta;

(b) in the case of goods transported from Malta -

(i) the total value of supplies of goods transported

to the Member State where the transport ends by the

supplier of the distance sale in question during the year

in which that sale takes place or during the calendar

year immediately preceding that year does not exceed

the threshold above which, in accordance with the value

added tax legislation of that State, distance sales are

subject to tax in that State by reason of their value; and

(ii) the supplier has not made a valid election in

Malta in terms of which the distance sale is to be treated

as taking place in the Member State where the transport

ends.

(3) A valid election for the purpose of (2)(b)(ii) shall

be made by means of a notice in writing to the Commissioner on

a form acceptable to the Commissioner specifying the date from

which it applies, not being earlier than thirty days from the date

on which it is furnished, and shall apply to all distance sales made

during the calendar year in which the election is made and for the

two subsequent calendar years.

Part Two

Place of supply of services

Definitions

1. For the purpose of applying the rules concerning this

(a) a taxable person who also carries out activities or

transactions that are not considered to be taxable supplies

of goods or services in accordance with Article 4 shall be

regarded as a taxable person in respect of all services rendered

to him;

(b) a non-taxable legal person who is identified for

VAT purposes shall be regarded as a taxable person.

General rules

2. (1) The place of supply of services to a taxable person

acting as such shall be the place where that person has established

his business. However, if those services are provided to a fixed

establishment of the taxable person located in a place other than

the place where he has established his business, the place of supply

of those services shall be the place where that fixed establishment

is located. In the absence of such place of establishment or fixed

establishment, the place of supply of services shall be the place

where the taxable person who receives such services has his

permanent address or usually resides.

(2) The place of supply of services to a non-taxable

person shall be the place where the supplier has established his

business. However, if those services are provided from a fixed

establishment of the supplier located in a place other than the

place where he has established his business, the place of supply

of those services shall be the place where that fixed establishment

is located. In the absence of such place of establishment or fixed

establishment, the place of supply of services shall be the place

where the supplier has his permanent address or usually resides.

Supply of services by intermediaries

3. The place of supply of services rendered to a non-taxable

person by an intermediary acting in the name and on behalf of

another person shall be the place where the underlying transaction

is supplied in accordance with this Act.

Supply of services connected with immovable property

4. The place of supply of services connected with

immovable property, including the services of experts and estate

agents, the provision of accommodation in the hotel sector or

in sectors with a similar function, such as holiday camps or

sites developed for use as camping sites, the granting of rights

to use immovable property and services for the preparation and

coordination of construction work, such as the services of architects

and of firms providing on-site supervision, shall be the place where

the immovable property is located.

Supply of transport

(1) The place of supply of passenger transport shall

be the place where the transport takes place, proportionate to the

distances covered.

(2) The place of supply of the transport of goods,

other than the intra-Community transport of goods, to non-

taxable persons shall be the place where the transport takes place,

proportionate to the distances covered.

(3) The place of supply of the intra-Community

transport of goods to non-taxable persons shall be the place of

departure.

For the purpose of this paragraph

(a) “Intra-Community transport of goods” shall

mean any transport of goods in respect of which the place

of departure and the place of arrival are situated within the

territories of two different Member States.

(b) “Place of departure” shall mean the place where

transport of the goods actually begins, irrespective of

distances covered in order to reach the place where the goods

are located and “place of arrival” shall mean the place where

transport of the goods actually ends.

Supply of cultural, artistic, sporting, scientific, educational,

entertainment and similar services, ancillary transport services

and valuations of and work on movable property

(1) The place of supply of services and ancillary

services relating to cultural, artistic, sporting, scientific, educational,

entertainment or similar activities, such as fairs and exhibitions,

including the supply of services of the organisers of such activities,

shall be the place where those activities are physically carried out.

(2) The place of supply of the following services

to non-taxable persons shall be the place where the services are

physically carried out

(a) ancillary transport activities such as loading,

unloading, handling and similar activities;

(b) valuations of and work on movable tangible

property.

Supply of restaurant and catering services

The place of supply of restaurant and catering services

other than those physically carried out on board ships, aircraft or

trains during the section of a passenger transport operation effected

within the Community, shall be the place where the services are

physically carried out.

Hiring of means of transport

(1) The place of short-term hiring of a means of

transport shall be the place where the means of transport is actually

put at the disposal of the customer.

(2) For the purposes of this item, “short-term” shall

mean the continuous possession or use of the means of transport

throughout a period of not more than thirty days and, in the case of

vessels, not more than ninety days.

Supply of restaurant and catering services for consumption on

board ships, aircraft or trains

(1) The place of supply of restaurant and catering

services which are physically carried out on board ships, aircraft or

trains during the section of a passenger transport operation effected

within the Community, shall be at the point of departure of the

passenger transport operation.

(2) For the purposes of paragraph (1), “section of

a passenger transport operation effected within the Community”

shall mean the section of the operation effected, without a stopover

outside the Community, between the point of departure and the

point of arrival of the passenger transport operation.

“Point of departure of a passenger transport operation” shall

mean the first scheduled point of passenger embarkation within

the Community, where applicable after a stopover outside the

Community.

“Point of arrival of a passenger transport operation” shall

mean the last scheduled point of disembarkation within the

Community of passengers who embarked in the Community, where

applicable before a stopover outside the Community.

In the case of a return trip, the return leg shall be regarded as

a separate transport operation.

Supply of electronic services to non-taxable persons

(1)

The place of supply of electronically supplied

services, when supplied to non-taxable persons who are established

in a Member State, or who have their permanent address or usually

reside in a Member State, by a taxable person who has established

his business outside the Community or has a fixed establishment

there from which the service is supplied, or who, in the absence of

such a place of business or fixed establishment, has his permanent

address or usually resides outside the Community, shall be the

place where the non-taxable person is established, or where he has

his permanent address or usually resides.

(2) For the purpose of this item, electronically

supplied services include services relating to website supply, web-

hosting, distance maintenance of programmes and equipment,

supply of software and updating thereof, supply of images, text

and information, and making available of databases, supply of

music, films and games, including games of chance and gambling

games, and of political, cultural, artistic, sporting, scientific and

entertainment broadcasts and events, and the supply of distance

teaching.

Where the supplier of a service and the customer

communicate via electronic mail, that shall not of itself mean that

the service supplied is an electronically supplied service.

Supply of services to non-taxable persons outside the Community

The place of supply of the following services to a non-

taxable person who is established or has his permanent address or

usually resides outside the Community, shall be the place where

that person is established, has his permanent address or usually

resides

(a) transfers and assignments of copyrights, patents,

licences, trade marks and similar rights;

(b)

advertising services;

(c) the services of consultants, engineers, consultancy

firms, lawyers, accountants and other similar services, as well

as data processing and the provision of information;

(d) obligations to refrain from pursuing or exercising,

in whole or in part, a business activity or a right referred to in

this item;

(e) banking, financial and insurance transactions

including reinsurance, with the exception of the hire of safes;

(f) the supply of staff;

(g) the hiring out of movable tangible property, with

the exception of all means of transport;

(h) the provision of access to, and of transport or

transmission through, natural gas and electricity distribution

systems and the provision of other services directly linked

thereto;

(i) telecommunications services;

(j) radio and television broadcasting services;

(k) electronically supplied services, in particular those

referred to in item 10 (2) of this Part.

Where the supplier of a service and the customer

communicate via electronic mail, that shall not of itself mean that

the service supplied is an electronically supplied service.

Prevention of double taxation or non-taxation

(1) In order to prevent double taxation, non-taxation

or distortion of competition, the Commissioner may, with regard to

services the place of supply of which is governed by Items 2, 8 and

11 of this Part

(a) consider the place of supply of any or all of those

services, if situated within Malta, as being situated outside the

Community if the effective use and enjoyment of the services

takes place outside the Community;

(b) consider the place of supply of any or all of those

services, if situated outside the Community, as being situated

within Malta if the effective use and enjoyment of the

services takes place within Malta.

However, this provision shall not apply to the electronically

supplied services where those services are rendered to non-taxable

persons not established within the Community.

(2) The provisions of paragraph (1)(b) shall apply to

telecommunications services and radio and television broadcasting

services, as referred to in paragraph (j) of Item 11, supplied to non-

taxable persons who are established in Malta, or who have their

permanent address or usually reside in Malta, by a taxable person

who has established his business outside the Community or has

a fixed establishment there from which the services are supplied,

or who, in the absence of such a place of business or fixed

establishment, has his permanent address or usually resides outside

the Community.

Part Three

Place of Intra-Community Acquisitions

Intra-community acquisitions: general rule

1. An intra-community acquisition takes place where the

goods are when the transport of the goods to the person acquiring

them ends.

Place of intra-community acquisition under an identification

number assigned under this Act

2. (1) Without prejudice to item 1, when a taxable person

makes an intra-community acquisition on which he is identified as

registered under article 10 the acquisition shall be deemed to take

place in Malta unless the person acquiring the goods establishes

that the acquisition has been treated as taking place in another

Member State and subject to value added tax in that State in terms

of provisions in force under the law of that State corresponding to

item 1.

(2) For the purpose of paragraph (1) an intra-

community acquisition of goods shall be deemed to have been

subject to value added tax in a Member State in terms of provisions

in force under the law of that State corresponding to item 1 if all

the following conditions are fulfilled

(a) it is made for the purpose of a subsequent supply of

those goods in that other Member State;

(b) the subsequent supply is made to a taxable person

or a non-taxable legal person identified for value added tax

purposes in the Member State of destination;

(c) the person to whom the subsequent supply is made

is designated by the supplier as the person liable for the

payment of the tax on that supply;

(d) the taxable person registered under article 10

reports the subsequent supply in the recapitulative statement

required in terms of article 30(3).

Part Four

Place of Importations

Importations

1. An importation of goods takes place where the goods are

at the time when the chargeable event takes place.”.

3. As of the 1st January 2011 for item 6, Part Two of the

Schedule, there shall be substituted the following

“Supply of cultural, artistic, sporting, scientific, educational,

entertainment and similar services, ancillary transport services

and valuations of and work on movable property

6. (1) The place of supply of services in respect of

admission to cultural, artistic, sporting, scientific, educational,

entertainment or similar events, such as fairs and exhibitions, and

of ancillary services related to the admissions, supplied to a taxable

person, shall be the place where those events actually take place.

(2) (a) The place of supply of services and

ancillary services, relating to cultural, artistic, sporting, scientific,

educational, entertainment or similar activities, such as fairs and

exhibitions, including the supply of services of the organisers of

such activities, supplied to a non-taxable person shall be the place

where those activities actually take place.

(b) The place of supply of the following services

to a non-taxable person shall be the place where the services are

physically carried out

(i) ancillary transport activities such as loading,

unloading, handling and similar activities;

(ii) valuations of and work on movable tangible

property.”

4. As of the 1st January 2013, for paragraph (2) of item 8,

Part Two of the Schedule, there shall be substituted the following

“(2) The place of hiring, other than short-term hiring,

of a means of transport to a non-taxable person shall be the

place where the customer is established, has his permanent

address or usually resides.

However, the place of hiring a pleasure boat to a non-

taxable person, other than short-term hiring, shall be the

place where the pleasure boat is actually put at the disposal

of the customer, where this service is actually provided by the

supplier from his place of business or a fixed establishment

situated in that place.

(3) For the purposes of paragraphs 1 and 2, “short-

term” shall mean the continuous possession or use of the

means of transport throughout a period of not more than thirty

days and, in the case of vessels, not more than 90 days.”.

5. As of the 1st January 2015, for item 10, Part Two of the

Schedule there shall be substituted the following

“Supply of telecommunications, broadcasting and electronic

services to non-taxable persons

10. (1) The place of supply of the following services

to a non-taxable person shall be the place where that person is

established, has his permanent address or usually resides

(a) telecommunications services;

(b) radio and television broadcasting services;

(c) electronically supplied services.

(2) For the purpose of this item, electronically

supplied services include services relating to website supply, web-

hosting, distance maintenance of programmes and equipment,

supply of software and updating thereof, supply of images, text

and information, and making available of databases, supply of

music, films and games, including games of chance and gambling

games, and of political, cultural, artistic, sporting, scientific and

entertainment broadcasts and events, and the supply of distance

teaching.

Where the supplier of a service and the customer

communicate via electronic mail, that shall not of itself mean that

the service supplied is an electronically supplied service.”.

6. As of the 1st January 2015, in item 11, Part Two of the

Schedule there shall be deleted the following

2015. “(i) telecommunications services;

(j) radio and television broadcasting services;

(k) electronically supplied services, in particular those

referred to in item 10 (2) of this Part.

Where the supplier of a service and the customer

communicate via electronic mail, that shall not of itself mean that

the service supplied is an electronically supplied service.”.

7. As of the 1st January 2015, for item 12, Part Two of the

Schedule there shall be substituted the following

“Prevention of double taxation or non-taxation

12. In order to prevent double taxation, non-taxation or

distortion of competition, the Commissioner may, with regard to

services the place of supply of which is governed by Items 2, 8, 10

and 11 of this Part

(a) consider the place of supply of any or all of those

services, if situated within Malta, as being situated outside the

Community if the effective use and enjoyment of the services

takes place outside the Community;

(b) consider the place of supply of any or all of those

services, if situated outside the Community, as being situated

within Malta if the effective use and enjoyment of the services

takes place within Malta.”.

B

€1.30