357 tal-2009 - Regolamenti tal-2009 dwar Taxxa fuq il-Valur Miżjud (Rifużjoni ta’ Taxxa fuq il-Valur Miżjud lill-persuni taxxabbli mhux stabbiliti f’Malta iżda stabbiliti fi Stat Membru ieħor)

L.N. 357 of 2009

VALUE ADDED TAX ACT

(CAP. 406)

Value Added Tax (Refund of Value Added Tax to taxable

persons not established in Malta), Regulations, 2009

IN virtue of the powers conferred by articles 26 and 75 of

the Value Added Tax Act, hereinafter referred to as “the Act”, the

Minister of Finance, the Economy and Investment has made the

following regulations

(1) The title of these regulations is the Value Added Tax

(Refund of Value Added Tax to taxable persons not established in Malta

but established in another Member State), Regulations, 2009.

(2) These regulations shall come into force on the 1 st

January 2010.

(3) These regulations shall apply to refund applications

submitted after 31 st December 2009.

(4) These regulations shall bring into force the

provisions of Council Directive 2008/9/EC of 12 th February 2008.

For the purpose of these regulations, and unless the context

otherwise requires

“applicant” means the taxable person not established in Malta

making the refund application.

“refund application” means the application for refund of

VAT charged in Malta to the taxable person not established in

Malta in respect of goods or services supplied to him by other

taxable persons in Malta or in respect of the importation of

goods into Malta.

“refund period” means the period mentioned in regulation

16 of these regulations covered by the refund application.

“taxable person not established in Malta” means a taxable

person within the meaning of article 5 of the Act who is not

established in Malta but established in the territory of another

Member State.

These regulations shall apply to any taxable person not

established in Malta who meets the following conditions

(a) during the refund period, he has not had in Malta,

the seat of his economic activity, or a fixed establishment from

which business transactions were effected, or, if no such seat

or fixed establishment existed, his domicile or normal place of

residence;

(b) during the refund period, he has not supplied any

goods or services deemed to have been supplied in Malta, with

the exception of the following transactions

(i) the supply of transport services and services

ancillary thereto, exempted pursuant to items 4(2),

4(3), 4(4), 4(5), 4(6), 5, 6 and 7 of Part One of the Fifth

Schedule to the Act and article 70 of the Act;

(ii) the supply of goods and services to a person

who is liable for payment of VAT in accordance with

article 20 (2) of the Act.

These regulations shall not apply to

(a) amounts of VAT which, according to the Act, have

been incorrectly invoiced;

(b) amounts of VAT which have been invoiced in respect

of supplies of goods the supply of which is, or may be, exempt

under items 1(2) and 3 of Part One of the Fifth Schedule to the

Act.

(1) The Commissioner shall refund to any taxable person

not established in Malta any value added tax charged in respect of

goods or services supplied to him by other taxable persons in Malta

or in respect of the importation of goods into Malta, insofar as

such goods and services are used for the purposes of the following

transactions

(a) transactions referred to in Article 169(a) and (b) of

Directive 2006/112/EC;

(b) transactions to a person who is liable for payment of

VAT in accordance with article 20(2) of the Act.

(2) Without prejudice to regulation 6, for the purposes

of these regulations, entitlement to an input tax refund shall be

determined pursuant to the conditions laid down in the Tenth

Schedule to the Act.

(1) To be eligible for a refund, a taxable person not

established in Malta has to carry out transactions giving rise to a

right of deduction in the Member State of establishment.

(2) When a taxable person not established in Malta

carries out in the Member State in which he is established both

transactions giving rise to a right of deduction and transactions

not giving rise to a right of deduction in that Member State, only

such proportion of the VAT which is refundable in accordance with

regulation 5 may be refunded by the Commissioner as is attributable

to the former transactions in accordance with Article 173 of Directive

2006/112/EC as applied by the Member State of establishment.

To obtain a refund of VAT, the taxable person not

established in Malta shall address an electronic refund application

to the Commissioner and submit it to the Member State in which he

is established via the electronic portal set up by that Member State.

(1) The refund application shall contain the following

information

(a) the applicant’s name and full address;

(b) an address for contact by electronic means;

(c) a description of the applicant’s business activity for

which the goods and services are acquired;

(d) the refund period covered by the application;

(e) a declaration by the applicant that he has supplied

no goods and services deemed to have been supplied in Malta

during the refund period, with the exception of transactions

referred to in sub-paragraph (i) and (ii) of regulation 3(b);

(f) the applicant’s VAT identification number or tax

reference number;

(g) bank account details including IBAN and BIC

codes.

(2) In addition to the information specified in sub-

regulation (1) hereof, the refund application shall set out, for each

invoice or importation document, the following details

(a) name and full address of the supplier;

(b) except in the case of importation, the VAT

identification number of the supplier, as allocated by the

Commissioner in accordance with the provisions of article 10

of the Act;

(c) date and number of the invoice or importation

document;

(d) taxable amount and amount of VAT expressed in the

currency euro;

(e) the amount of deductible VAT calculated in

accordance with regulation 5 and the second paragraph of

regulation 6 expressed in euro;

(f) where applicable, the deductible proportion

calculated in accordance with regulation 6 of these regulations,

expressed as a percentage;

(g) nature of the goods and services acquired, described

according to the codes in regulation 9 of these regulations.

(1) In the refund application, the nature of the goods and

services acquired shall be described by the following codes

for fuel;

for hiring of means of transport;

3 for expenditure relating to means of transport (other

than the goods and services referred to under codes 1 and 2);

for road tolls and road user charge;

for travel expenses, such as taxi fares, public transport

fares;

for accommodation;

for food, drink and restaurant services;

for admissions to fairs and exhibitions;

9 for expenditure on luxuries, amusements and

entertainment;

for other.

(2) If code 10 is used, the nature of the goods and

services supplied shall be indicated.

(3) The Commissioner may require the applicant to

provide additional electronic coded information as regards each

code set out in sub-regulation (1) to the extent that such information

is necessary because of any restrictions on the right of deduction as

applicable under the Tenth Schedule to the Act.

Without prejudice to requests for information under

regulation 20 of these regulations, the Commissioner may require

the applicant to submit by electronic means a copy of the invoice or

importation document with the refund application where the taxable

amount on an invoice or importation document is 1,000 euro or

more. Where the invoice concerns fuel, the threshold is 250 euro.

The Commissioner may require the applicant to provide

a description of his business activity by using the harmonised codes

determined in accordance with the second subparagraph of Article

34a(3) of Council Regulation (EC) No 1798/2003 (1).

The Commissioner may specify which language or

languages shall be used by the applicant for the provision of

information in the refund application or of possible additional

information.

(1) If subsequent to the submission of the refund

application the deductible proportion is adjusted pursuant to Article

175 of Directive 2006/112/EC, the applicant shall make a correction

to the amount applied for or already refunded.

(2) The correction shall be made in a refund application

during the calendar year following the refund period in question or,

if the applicant makes no refund applications during that calendar

year, by submitting a separate declaration via the electronic portal

established by the Member State of establishment.

(1) The refund application shall relate to the

following

(a) the purchase of goods or services which was

invoiced during the refund period, provided that the VAT

became chargeable before or at the time of the invoicing, or in

respect of which the VAT became chargeable during the refund

period, provided that the purchase was invoiced before the tax

became chargeable;

(b) the importation of goods during the refund period.

(2) In addition to the transactions referred to in sub-

regulation (1), the refund application may relate to invoices or

import documents not covered by previous refund applications

and concerning transactions completed during the calendar year in

question.

(1) The refund application shall be submitted to the

Member State of establishment at the latest on 30 September of the

calendar year following the refund period. The application shall

be considered submitted only if the applicant has filled in all the

information required under regulations 8, 9 and 11.

(2) The Member State of establishment shall send the

applicant an electronic confirmation of receipt without delay.

The refund period shall not be more than one calendar year

or less than three calendar months. Refund applications may, however,

relate to a period of less than three months where the period represents the

remainder of a calendar year.

(1) If the refund application relates to a refund period

of less than one calendar year but not less than three months, the

amount of VAT for which a refund is applied for may not be less

than 400 euro.

(2) If the refund application relates to a refund period

of a calendar year or the remainder of a calendar year, the amount of

VAT may not be less than 50 euro.

(1) The Member State of establishment shall not

forward the application to the Commissioner where, during the

refund period, any of the following circumstances apply to the

applicant in that Member State of establishment

(a) he is not a taxable person for VAT purposes;

(b) he carries out only supplies of goods or of services

which are exempt without deductibility of the VAT paid at the

preceding stage pursuant to Articles 132, 135, 136, 371, Articles

374 to 377, Article 378(2)(a), Article 379(2) or Articles 380

to 390 of Directive 2006/112/EC or provisions providing for

identical exemptions;

(c) he is covered by the exemption for small enterprises

provided for in Articles 284, 285, 286 and 287 of Directive

2006/112/EC;

(d) he is covered by the common flat-rate scheme

for farmers provided for in Articles 296 to 305 of Directive

2006/112/EC.

(2) The Member State of establishment shall notify the

applicant by electronic means of the decision it has taken pursuant

to sub-regulation (1) hereof.

(1) The Commissioner shall notify the applicant without

delay, by electronic means, of the date on which the application is

received.

(2) The Commissioner shall notify the applicant of the

decision to approve or refuse the refund application within four

months from the date of its receipt.

(1) Where the Commissioner considers that he does not have

all the relevant information on which to make a decision in respect of the

whole or part of the refund application, he may request, by electronic means,

additional information, in particular from the applicant or from the competent

authorities of the Member State of establishment, within the four-month

period referred to in regulation 19(2). Where the additional information is

requested from someone other than the applicant or a competent authority of

a Member State, the request shall be made by electronic means only if such

means are available to the recipient of the request.

(2) If necessary, the Commissioner may request further

additional information. The information requested in accordance

with this paragraph may include the submission of the original

or a copy of the relevant invoice or import document where the

Commissioner has reasonable doubts regarding the validity or

accuracy of a particular claim. In that case, the thresholds mentioned

in regulation 10 shall not apply.

(3) The Commissioner shall be provided with the

information requested under sub-regulation (1) within one month

of the date on which the request reaches the person to whom it is

addressed.

Where the Commissioner requests additional information,

he shall notify the applicant of his decision to approve or refuse

the refund application within two months of receiving the requested

information or, if he has not received a reply to his request, within

two months of expiry of the time limit laid down in regulation 20(2).

However, the period available for the decision in respect of the whole

or part of the refund application shall always be at least six months

from the date of receipt of the application by the Commissioner

Provided that, where the Commissioner requests further

additional information, he shall notify the applicant of his decision

in respect of the whole or part of the refund application within eight

months of receipt of the application.

(1) Where the refund application is approved, refunds of

the approved amount shall be paid by the Commissioner at the latest

within 10 working days of the expiry of the deadline referred to in

regulation 19(2) or, where additional or further additional information

has been requested, the deadlines referred to in regulation 21.

(2) The refund shall be paid in Malta or, at the applicant’s

request, in any other Member State. In the latter case, any bank

charges for the transfer shall be deducted by the Commissioner from

the amount to be paid to the applicant.

(1) Where the refund application is refused in whole or

in part, the Commissioner shall notify the applicant with the decision

including the grounds for refusal.

(2) Appeals against decisions to refuse a refund application may

be made by the applicant to the Value Added Tax Appeals Board in

terms of article 44 and the Ninth Schedule to the Act.

(3) Where the Commissioner fails to take a decision on a

refund application within the time limits mentioned in regulations

19(2) and 21, it shall mean that the application is deemed to have

been rejected.

(1) Where a refund has been obtained in a fraudulent way

or otherwise incorrectly, the Commissioner shall proceed directly to

recover the amounts wrongly paid and any penalties and interest imposed

in accordance with sub-regulation (2) hereof, without prejudice to the

provisions on mutual assistance for the recovery of VAT.

(2) Where a refund has been obtained in the circum-

stances mentioned in sub-regulation (1) hereof, an administrative

penalty equivalent to twenty per cent of the amount unduly received

shall become due, together with interest at the rate of zero point

seven five per cent (0.75 %) per month or part thereof which inter-

est shall start to run from the date of payment of the amount un-

duly received to the date when such amount together with the ad-

ministrative penalty and interest is paid back to the Commissioner

Provided that, the amount of such administrative penalty

and interest taken together shall not exceed the amount obtained in

a fraudulent or any other irregular manner.

(3) Where an administrative penalty or interest has been

imposed but has not been paid, the Commissioner may suspend any

further refund to the taxable person concerned up to the unpaid amount.

The Commissioner shall take into account as a decrease or

increase of the amount of the refund any correction made concerning

a previous refund application in accordance with regulation 13 or,

where a separate declaration is submitted, in the form of separate

payment or recovery.

(1) Interest shall be due to the applicant by the

Commissioner on the amount of the refund to be paid if the refund

is paid after the last date of payment pursuant to regulation 22(1).

(2) If the applicant does not submit the requested

additional or further additional information to the Commissioner

within the specified time limit, the first paragraph shall not apply. It

shall also not apply until the documents to be submitted electronically

pursuant to regulation 10 have been received by the Commissioner.

(1) Interest shall be calculated from the day following the

last day for payment of the refund pursuant to regulation 22(1) until

the day the refund is actually paid.

(2) Interest shall apply in accordance with Article 24(3)

of the Act.

(1) The Refund of Value Added Tax to taxable persons not

established in Malta, Regulations, 2004 shall be revoked. However, its

2004. provisions shall continue to apply to refund applications submitted before

1 st January 2010.

B

(2) References to the revoked regulations shall be construed

as references to these regulations except for refund applications submitted

before 1 st January 2010.

€0.93