Service-Tax

Tax base, the moment when the tax obligation arises and the rate for media re-invoicing

Letter of February 29, 2012, file ref. IPTPP4 / 443-103 / 11-2 / OS, Director of the Tax Chamber in Łódź

The taxpayer is entitled to issue an invoice to the landlord at the rate appropriate for the telecommunications service, if the taxpayer does not use the telecommunications service, resells the service without margin, issues a re-invoice at the rate that appears on the original invoice, and at the time of the tax obligation in the case of resale will be the payment date specified in the agreement applicable to settlements for these services, while the agreement applicable to settlements for the resale of goods and services under the rental service is not an agreement with the provider of services related to the operation of the premises, but an agreement concluded between the landlord and using the lease.

Individual interpretation

Based on Article. 14b § 1 and § 6 of the Act of August 29, 1997 - Tax Ordinance (consolidated text Journal of Laws of 2005, No. 8, item 60, as amended) and § 2 and § 5a of the Regulation of the Minister of Finance of June 20, 2007 on the authorization to issue interpretations of tax law (Journal of Laws No. 112, item 770, as amended). The Director of the Tax Chamber in Łódź, acting on behalf of the Minister of Finance, states that the Applicant's position. presented in the application of November 25, 2011 (date of receipt on December 1, 2011) for a written interpretation of the tax law regarding value added tax in terms of the tax base, the moment of tax liability, the rate when re-invoicing media - is incorrect.

Justification

On December 1, 2011, the above-mentioned application for a written interpretation of tax law provisions in an individual case regarding tax on goods and services in the scope of the tax base, the moment when the tax obligation arises and the rate for media re-invoicing.

The following facts are presented in the present application:

AND.

The applicant rents out a car wash room located at ul. X with equipment. The tenant undertakes to pay a certain amount of rent for the use of the subject of the lease.

The amount of the rent is payable by the 10th of each month on the basis of an invoice. The amount of the rent, which was clearly stated in the contract, does not include the costs of the so-called utilities (energy, water, sewage), which are charged to the tenant. The value of the debit is the product of the indication of the sub-meter from which the reading is made and the average price resulting from the invoice issued by Zakład Energetyczny and MPWiK for the Lessor. The invoice for utilities issued to the tenant is payable on the date indicated in the invoice, which results from the contract.

II.

The applicant sublets the premises located at ul. Z. Sub-tenants undertake to pay the rent in advance for the use of the object of the sublet, by the 10th of each month, based on an invoice. The amount of the rent, as indicated in the contract, does not include costs related to the use of the subject of the sub-rental, in particular the costs of energy, water, garbage disposal, telephone and fax connections, protection of the subject of the lease, central heating, etc., which are directly charged to the sub-tenant according to the readings or the agreed division. between users (in practice, in proportion to the occupied space).

In connection with the above, the Applicant issues invoices for the services he provides, i.e. for lease using the 23% rate (he recognizes the tax obligation in accordance with Article 19 (13) point 4, i.e. upon receipt of all or part of the payment, no later than payment deadline) for water, sewage and garbage collection using the 7% rate, and from January 1, 2011, 8%, and for other utilities, 22%, and from January 1, 2011, 23% (tax obligation in the case of described in point I, the Company recognizes in accordance with art.19 par.13 point 1, i.e. in the month in which the payment date falls, while in the cases described in point II, the Company recognizes in accordance with art. , because the contract does not specify the payment date).

In light of the above, the following questions were asked:

Does the taxable amount of rental services in the state described above include the value of invoiced utilities?
If the answer to question 1 is in the affirmative, i.e. in the opinion of the authority, it is a comprehensive service, then:
- from what moment should one recognize the taxation of a comprehensive service, since there has been no amendment to the regulations and the practice of the authorities so far, including written interpretations, indicated the correctness of separate taxation of media
- how to determine the moment when a tax obligation arises. Is the correct moment for the rental service, since the value of the debit is not known on the date of payment of the rent?
What is the rate for media re-invoicing?

In the opinion of the Applicant, the tax base, in accordance with the will of the legislator, is the amount due, including the entire benefit due from the buyer. The concept of the amount payable (turnover) on account of the sale should be combined with the concept of remuneration or payment due to the seller for its performance to the buyer. The regulation resulting from Art. 29 sec. 1 of the Act is the equivalent of Art. 73 of Council Directive 2006/112 / EC of 28 November 2006 on the common system of value added tax (Journal of Laws UE L No. 347, p. 1, as amended). Pursuant to Art. 73 of the above-mentioned Directive, the tax base is everything that is the remuneration (payment) that the supplier of goods or services has received or is to receive from the buyer, customer or third party for the activities performed, including subsidies directly related to the price of such supplies. Therefore, in the opinion of the Applicant, the rent from the lease should be included in the tax base for rental services. On the other hand, the services accompanying the rent for the so-called media benefits. According to Art. 78 of the Directive, the tax base also includes taxes, fees and similar charges, excluding value added tax. In this case, it concerns receivables of a public law nature. According to the same provision of the Directive, the tax base covers additional costs, such as commissions, packaging, transport and insurance costs, charged to the buyer or customer by the supplier. Member States may consider as additional costs expenditure which is the subject of a separate agreement. This provision clarifies which elements are taken into account when determining the taxable remuneration and lists, for example, several types of costs that fall within the concept of the tax base. However, these are costs which are ancillary services, as they do not constitute an end in themselves for the buyer. Thus, such benefits may be considered as additional, ancillary costs by the Member States. Of course, they should be included in the catalog of such benefits. The Polish act does not contain such a catalog, even an exemplary one, and many years of practice in applying the law by the authorities indicate that the media were treated as services separate from rental. The domestic legislation has not changed in this respect since the entry into force of the VAT Act.

In the opinion of the Applicant, the concept of subsidiarity does not exist in the case of re-invoicing additional benefits. Such a concept assumes the existence of a relation between the main benefit and the auxiliary benefit in relation to the main benefit, if this relation in a given case (as in the factual state presented in the application for interpretation) does not exist as separate benefits. Referring to the jurisprudence of the ECJ, we would like to note that in order to determine the scope of a given benefit, all circumstances must be taken, including the legal context (C-251/05 Talacre Beach Caravan Sales Ltd of 6 July 2006). Separation of the rent benefit and the rent determined from him for the use of premises from media charges. According to the Civil Code, rent is charged for the use of the rented item (Article 659 § 1), and it is possible for the tenant to incur additional benefits (Article 670 § 1). In the case of the present case, when rent is charged separately and utility charges are separately charged, we are not dealing with a comprehensive service, but with a rental service and additional services, separate from this service. However, these are not additional costs within the meaning of Art. 78 of the Directive 112. Referring to the content of Art. 28 of Directive 112, it should be noted that when a taxpayer, acting on his own behalf, but for a third party, participates in the provision of services, it is assumed that the taxpayer has received and provided these services himself. These laws give rise to taxpayers' rights and obligations with respect to what is known as the "resale" or "re-invoicing" of services.

Therefore, it should be stated that the purchase of services and their subsequent resale (regardless of the technical method of determining the charge, with or without a margin) should always be treated as two separate service transactions. Their merger would be artificial, given the contractual regulations between the parties, especially since these services have different moments of tax liability, as provided for in Polish legislation, and the inability to determine the tax base at the time the tax obligation arises (in the month in which the rent due date expired, they are not known meter readings). Thus, utility charges cannot be included in the tax base for the lease. The Polish legislator in the field of services related to the supply of utilities, by indicating a tax point other than for rental services, decided directly that these costs are not treated as an element of the tax base for rental services. He assumed that these two benefits are not closely related to each other in a situation where, in the lease agreement, the parties separately regulate the issue of remuneration for the use of someone else's property (Article 659 § 1 of the Civil Code), and separate remuneration for providing media .

In the case of expenses incurred by the property owner related to the maintenance of his premises, and related to the so-called utilities, the owner acts as an intermediary between suppliers and recipients in the supply of utilities to individual premises. The final buyer of goods and services - water, heating, sewage disposal, etc. and serving to meet the individual needs of the community - is not the owner, but its tenants, each separately. It should be noted here that, taking into account Art. 28 of Directive 112 was added on 1 December 2008 to Art. 30 section 3 (Article 1 point 22 letter b) of the Act of November 7, 2008 amending the Act on tax on goods and services and certain other acts (Journal of Laws No. 209, item 1320), which reads as follows: "Where a taxpayer, acting in his own name but for the benefit of a third party, participates in the supply of services, the taxable amount shall be the amount payable for the provision of the services, less the amount of tax." Leaving aside the issues related to the implementation itself, for the purposes of the present case, suffice it to say that this was the way in which the issue of re-invoicing, previously interpreted under Art. 28 of Directive 112 and art. 6 sec. 4 of the VI Directive, as well as judgments of the Court of Justice of the European Union, stating that the taxpayer, acting on his own behalf, but for the benefit of a third party, participates in the provision of services. The same taxpayer received and provided these services.

As is clear from the judgment of the Supreme Administrative Court I FSK 740/10 of 31 May 2011 "in the case of a rental service, the provision of Article 29 (1) of the VAT Act should be interpreted in such a way that the fees resulting from the use of the premises by the tenant, i.e .: for thermal energy, water supply, sewage collection and waste disposal should be included in the tax base as elements of the rent for the rental service, unless the lease agreement concluded between the landlord and the tenant clearly indicates that these fees (all or some) pursuant to Art. 30 (3) of this Act are regulated by the tenant for the benefit of the landlord separately from the rent. (...)

Tax obligation: If, on the other hand, service charges accompanying the rental service are settled on the basis of the concluded contract separately from the rent, the tax obligation on their account arises pursuant to Art. 19 paragraph 13 point 1 of the VAT Act, i.e. with the payment deadline, if it has been specified in the contract applicable to settlements on their account. The tax obligation is recognized in this way in the case of the contract described in point I. However, in relation to the contracts described in point II, the tax obligation arises on general principles, ie on the date of issue of the re-invoice (Article 19 (4) of the VAT Act).

Tax rate: Since the fees resulting from the use of the premises by the tenant: for thermal energy, water supply, sewage collection and waste disposal should not be included in the tax base as elements of the rent for the rental service pursuant to Art. 29 sec. 1 of the VAT Act, because the lease agreement concluded between the landlord and the tenant clearly shows that these fees (all or some) pursuant to Art. 30 sec. 3 of this act are regulated by the tenant for the benefit of the landlord separately from the rent, the rates provided for in the act apply, i.e. 8% for water supply, sewage disposal and waste disposal, for other re-invoiced costs the rate of 23%.

In the light of the applicable legal status, the position of the Applicant on the legal assessment of the presented facts in terms of the tax base, the moment when the tax obligation arises, the rate for re-invoicing the media - is incorrect.

Pursuant to Art. 5 sec. 1 point 1 of the Act of March 11, 2004 on tax on goods and services (consolidated text: Journal of Laws of 2011, No. 177, item 1054), hereinafter referred to as the Act, tax on goods and services subject to paid delivery goods and paid services within the territory of the country.

Based on Article. 7 sec. 1 of the Act by the delivery of goods referred to in Art. 5 sec. 1 point 1 shall be understood as the transfer of the right to dispose of the goods as the owner.

Pursuant to Art. 8 sec. 1 of the Act, by providing the services referred to in Art. 5 sec. 1 point 1 shall be understood as any service provided to a natural person, legal person or organizational unit without legal personality, which does not constitute a supply of goods within the meaning of art. 7.

Pursuant to Art. 29 sec. 1 of the Act, the taxable amount is the turnover, subject to the provisions of paragraph 2. 2-21, art. 30-32, art. 119 and art. 120 paragraph 4 and 5. The turnover is the amount due for the sale, less the amount of the tax due. The amount payable covers the entire benefit payable by the buyer or a third party. The turnover is increased by received subsidies, subsidies and other payments of a similar nature that have a direct impact on the price (amount due) of goods or services provided by the taxpayer, less the amount of tax due.

Pursuant to Art. 41 sec. 1 of the Act, the tax rate is 22%, subject to paragraph 2-12c, art. 83, art. 119 paragraph. 7, art. 120 paragraph 2 and 3, art. 122 and art. 129 sec. 1.

However, pursuant to Art. 146a, point 1 of the Act, in the period from 1 January 2011 to 31 December 2013, subject to Art. 146f the tax rate referred to in article 1. 41 sec. 1 and 13, art. 109 paragraph. 2 and art. 110 is 23%.

Both in the content of the act and its implementing regulations, the legislator provided for the taxation of certain activities with reduced rates or tax exemption.

And so, according to Art. 43 sec. 1 point 36 of the Act, services in the field of renting or leasing real estate of a residential nature or part of a real estate, for own account, solely for housing purposes, are exempt from tax.

However, in the case of renting commercial premises, due to the fact that these premises are not exempt from tax, a tax rate of 23% applies, in accordance with the above-mentioned art. 41 sec. 1 in conjunction joke. 146a point 1 of the Act.

Pursuant to Art. 106 sec. 1 of the Act, the taxpayers referred to in Art. 15, are required to issue an invoice stating, in particular, the sale, date of sale, unit price without tax, tax base, tax rate and amount, the amount of the duty and the data of the taxpayer and the buyer, subject to paragraph 2. 1a, 2, 4 and 5 and article. 119 paragraph. 10 and art. 120 paragraph 16.

The presented facts show that the Applicant rents the premises of a car wash located at ul. X with equipment. The tenant undertakes to pay a certain amount of rent for the use of the subject of the lease. The amount of the rent is payable by the 10th of each month on the basis of an invoice. The amount of the rent, which was clearly stated in the contract, does not include the costs of the so-called utilities (energy, water, sewage), which are charged to the tenant. The value of the debit is the product of the sub-meter used for the reading and the average price resulting from the invoice issued by Zakład Energetyczny and MPWiK for the Lessor. The invoice for utilities issued to the tenant is payable on the date indicated in the invoice, which results from the contract. At the same time, the Applicant sublets the premises located at ul. Z. Sub-tenants undertake to pay the rent in advance for the use of the object of the sublet, by the 10th of each month, based on an invoice. The amount of the rent, as indicated by the content of the contract, does not include costs related to the use of the sublet, in particular the costs of energy, water, garbage disposal, telephone and fax connections, protection of the leased object, central heating, etc. "which are directly charged to the sub-tenant according to the readings or the agreed division between users (in practice, in proportion to the area occupied).

Pursuant to Art.28 of Council Directive 2006/112 / EC of 28 November 2006 on the common system of value added tax (Journal of Laws UE L No. 347, p. 1, as amended), if the taxpayer acting on his own behalf, but for the benefit of a third party, participates in the provision of services, it is assumed that the taxpayer has acquired and provided these services. This means that the entity providing (selling) a given service purchased on its own behalf, but for a third party, is first treated as the recipient of the service and then as the provider of the same service. The transfer of the burden of costs to another person cannot therefore be treated in any other way than as the provision of a service in the same scope. Thus, the consequence of recognizing a taxpayer participating in the resale of a service as the provider is that he issues an invoice documenting the provision of this service.

Pursuant to Art. 30 sec. 3 of the Value Added Tax Act, where the taxpayer, acting on his own behalf, but for a third party, participates in the provision of services, the taxable amount is the amount due for the provision of services, less the amount of tax.

The purpose of re-invoicing is therefore to transfer the costs incurred by the re-invoicing entity to the entity that actually used the given services, despite the fact that the entity re-invoicing the given service did not perform. The "re-invoice" is therefore a simple VAT invoice issued by an intermediary between the relevant service provider and the actual buyer of this service. This applies to a situation where a taxpayer buys a service and then resells it "unprocessed" to its contractor.

However, it should be noted that the above-mentioned provisions of the Directive were introduced into the Act on Value Added Tax on April 1, 2011.

According to Art. 8 sec. 2a of the quoted act, if a taxpayer, acting on his own behalf, but for a third party, participates in the provision of services, it is assumed that the taxpayer has received and provided these services himself.

Therefore, in the circumstances of the present case, it is necessary to decide whether the costs referred to in the facts are costs which may be re-invoiced.

It should be noted that in the analyzed situation, the expenses related to the fees for the so-called utilities are the cost of living for the landlord, while in relation to rent, they are elements of the cost accounting aimed at determining the amount of payment for the rental service.

The transfer of the costs of purchasing the service referred to above applies only to the service that the buyer purchased for resale in the form of the same service, which is not the same as the situation of resale of this service, which is an ancillary element of the main service, without which the ancillary service does not exist.

According to Art. 659 § 1 of the Act of 23 April 1964 - Civil Code (Journal of Laws No. 16, item 93, as amended), the landlord undertakes to give the tenant the property for use for a specified or indefinite period of time by the lease agreement, and the tenant undertakes to pay the landlord the agreed rent.

The lease is therefore a bilaterally binding and reciprocal contract, the equivalent of the lessor's benefit consisting in putting the property into use, is the lessee's service, consisting in paying the agreed rent. It follows from the above that the rent agreed between the parties is a remuneration for the use of someone else's property and is a consideration due for the use of a dwelling or business premises by its tenant.

It should be noted that the parties in civil law contracts define what is the subject of the sale. If the subject of sale is the rental service of premises, then individual cost elements cannot be excluded from it for separate sale in the event that the landlord equips the subject of the lease with additional elements (e.g. utilities), because the taxpayer's turnover is the agreed amount for the performance of a specific service, without due to its individual elements (water, sewage disposal, waste collection, protection of the rental object, etc.). The list of what constitutes the provided service has a significant informative significance when determining the price, however, it cannot justify the separate qualification of individual elements included in this calculation (for tax purposes). It should be noted that the parties may freely establish civil law relations, however, the provisions of the contracts may not conflict with other provisions of law, which the parties are obliged to apply.

The tenant, separately and irrespective of the rent, may bear the costs of utilities, if he concludes a contract directly with the supplier of the above-mentioned goods or service providers. In the absence of such agreements, the lease remains a service consisting of various services, leading to the achievement of a specific purpose - the rental of premises. Ancillary services and supplies, such as providing access to water, drainage, collection of waste, are not an end in themselves, but are a means of fully realizing or exploiting the essential service. A single service is treated as an element of the primary service if the purpose of the provision of the ancillary service is determined by the principal service and the principal service cannot be performed or used without the ancillary service.

The division into basic and auxiliary services is important from the point of view of applying the correct VAT rate. The main and auxiliary services are subject to the same tax rate. Without the basic service - rental services - resale of the above-mentioned media would lose its meaning. Considering the above, it should be stated that in the case of a lease agreement, the subject of the provision to tenants is the main service, i.e. the rental of commercial or residential premises, and additional costs, including charges for utilities (e.g. water consumption, sewage disposal and waste collection). ), are elements of cost accounting aimed at determining the amount of payment for the rental service, because from an economic point of view, they complement the basic service and should not be artificially separated from this service. Therefore, in a situation where the landlord concludes a contract for the supply of water, sewage disposal and waste collection to the property being the subject of the lease, he does not transfer the costs of supplying these utilities directly to the tenant.

Moreover, from the point of view of the recipient, it is important to purchase a rental service. Therefore, there are no legal grounds to artificially divide one rental service into: rental service and external (re-invoiced) services and to apply separate VAT rates for them. The tax consequences should be attributed to the leading benefit.

Thus, the expenses incurred by the landlord constitute, together with the rent, the turnover within the meaning of Art. 29 sec. 1 of the Act, for the provision of rental services to tenants. It should be noted that these services are taxed in accordance with the rules applicable to the services provided for the lease of premises, i.e. in the case of the lease of commercial premises, taxation at the rate of 23% referred to in Art. 41 sec. 1 in conjunction joke. 146a point 1 of the Act, while in the case of renting residential premises for residential purposes, tax exemption will apply, pursuant to Art. 43 sec. 1 point 36 of the Act.

Pursuant to the will of the legislator, the amount due covers the entire benefit due from the buyer. The concept of the amount payable (turnover) on account of the sale should be combined with the concept of remuneration or payment due to the seller for its performance to the buyer. The regulation resulting from Art. 29 sec. 1 of the Act is the equivalent of Art. 73 of the Directive. Pursuant to Art. 73 of the above-mentioned Directive, the tax base covers everything that is the payment received or which the supplier or service provider will receive in return for the supply of goods or services from the buyer, recipient or a third party, including subsidies directly related to the price of such supply or service.

The provision of art. 73 of the Directive uses the concept of payment (remuneration) that the supplier or service provider has received or is to receive, and the Polish legislator determines the turnover, which is the amount due for the sale. Despite the differences in nomenclature, it should be recognized that these concepts correspond.

According to Art. 78 of the Directive, the tax base also includes taxes, duties, fees and other charges, excluding VAT. According to the same provision of the Directive, the tax base covers additional costs, such as commissions, packaging, transport and insurance costs, charged to the buyer or recipient by the supplier or service provider. Member States may consider as additional costs expenditure which is the subject of a separate agreement. This provision clarifies which elements are taken into account when determining the taxable remuneration and lists, for example, several types of costs that fall within the concept of the tax base.

It deals with costs directly related to the principal supply of goods or services that add to the total amount payable for the transaction. According to this regulation, any cost directly related to the supply of goods or services charged to the buyer or customer by the supplier should be included in the tax base. The principle of including these benefits in the tax base means that the value of this type of costs, the burden of which is passed on to the buyer, is not shown as a separate service, but is treated as an element of the basic service, using the tax rate appropriate for the basic service.

In addition, it should be noted that treating in isolation the additional costs charged to tenants for their media use would amount to artificially sharing the rental service. A similar position is expressed by the European Court of Justice, which in its judgment of 25 February 1999 in the case of Card Protection Plan Ltd v Commissioners of Customs and Excise (C-349/96), resolved the question whether the provision of services involving several components should be treated as a single benefit or as two or more benefits. In it, the Court stated that in this case (to ancillary services) the same taxation rules apply as to the principal service; a service must therefore be considered an ancillary service if it is not an end in itself for the customer but a means to better exploit the underlying service.

The purpose of charging the entity that actually used the service with costs is to resell the service by the entity indirectly participating in the provision, even though the intermediary did not perform the service. Cost shifting is therefore a service between an intermediary entity between the relevant service provider and the actual purchaser of this service. This applies to a situation where a taxpayer buys a service and then resells it in the same form to its contractor.

Considering the above regulations and the actual state of affairs presented in the application, it should be stated that additional (auxiliary) services are closely related to the rental service of premises and are incidental (supplementary) to them. Services for the supply of utilities (energy, water, sewage disposal, waste disposal, security of the lease entity, central heating, etc.) do not constitute separate services, but are part of a whole, constituting one provision - the rental service. Therefore, the provision of the rental service along with the above-mentioned additional benefits is one service, the tax base of which should also include these benefits.

The applicant indicated in the description of the application that in addition to the rent, the tenant also incurs utility charges (energy, water, sewage) - it concerns the rental of real estate at ul. X. In the case of renting the property at ul. Y are the costs related to the use of the subject of the sublet, in particular the costs of energy, water, garbage disposal, protection of the subject of the lease, central heating, etc., which are directly charged to the sub-tenant according to the readings or the agreed division between users (in practice in proportion to the space occupied).

This means that the tax base should also include additional costs directly related to the main rental service, which will be borne by the interested party in connection with the provision of the rental service.

Bearing in mind the above, charges for energy, water, sewage, garbage collection, protection of the rental object, central heating, constituting a turnover within the meaning of Art. 29 sec. 1 of the Act are taxed at the rate appropriate for the provided rental services. These benefits are inextricably linked with the rental service, as necessary for the use of the premises, but having an ancillary character to it. As indicated above, from the content of Art. 29 sec. 1 of the act shows that the tax base is turnover. And the turnover is the amount due for the sale, less the amount of tax due. The amount due covers the entire benefit due from the buyer. Accordingly, the amount due includes all costs related to the rental service, which in effect affect the amount claimed from the buyer.

Therefore, in the opinion of the hereby authority, certain activities cannot be artificially separated from one comprehensive service, which is the property rental service, only in order to tax them (through "re-invoicing") on favorable terms. The above-mentioned provisions defining the tax base and turnover do not entitle to such a procedure. If a given entity provides a comprehensive service, but is in fact one, indivisible service, then it is not permissible to divide this service into parts and "re-invoice" its individual elements.

Pursuant to Art. 19 paragraph 13 point 4 of the Act, the tax obligation arises upon receipt of all or part of the payment, but no later than on the expiry of the payment deadline specified in the contract or invoice - for the provision of rental services, lease, leasing or services of a similar nature in the territory of the country, as well as services protection of persons and protection, supervision and storage of property, services in the field of insurance brokerage as well as permanent legal and office services. Therefore, the Applicant should recognize the moment when the tax obligation arises upon receipt of all or part of the payment, but no later than the expiry of the payment deadline specified in the contract or invoice - for the provision of the rental service.

Bearing in mind the above provisions and the description of the case presented in the application, it should be stated that in the case of the rental of apartments intended for residential purposes for the entire rental service (rent + payment for utilities), the tax exemption referred to in Art. 43 sec. 1 point 36 of the Act. However, in the case of commercial premises, the Applicant should issue to the tenants of the property a VAT invoice with the rate appropriate for the lease of commercial premises, which from January 1, 2011 is 23%, the tax base should include all fees related to the lease, i.e. utility charges. (energy, water, sewage) and in the case of costs related to the use of the object of the sub-rental - costs of energy, water, waste disposal, protection of the object of the lease, central heating, etc.

Summing up, the Applicant, charging the tenants of commercial premises with the costs of consumed utilities, should include the value of utilities used in the tax base. At the same time, from 1 January 2011, it should apply to the entire lease service provided.the rate appropriate for the basic service - rental service, i.e. the VAT rate of 23%, in accordance with Art. 41 sec. 1 in connection with Art. 146a point 1 of the Act. The tax obligation will arise upon receipt of all or part of the payment, but not later than on the expiry of the payment deadline specified in the contract or invoice - for the provision of the rental service - in accordance with art. 19 paragraph 13 point 4 of the Act. However, in the case of renting residential premises, the exemption referred to in Art. 43 sec. 1 point 36 of the Act.

However, as regards the resale of the telecommunications service (telephone and fax connections), which the Applicant also mentions alongside other "media", it should be noted that this service is an independent and separate service from the rental service. Although telecommunications services accompany the use of the rented facility, they are not necessary for the use of the facility (cf. judgment of the EU CJEU of 11 June 2009 in case C-572/07).

Therefore, it should be concluded that the purpose of charging the entity that actually used the service with the costs of telecommunications services is to resell the service by the entity indirectly participating in the provision, even though the intermediary of the service did not provide the service. Cost shifting is therefore a service between an intermediary entity between the relevant service provider and the actual buyer of this service. This applies to a situation where a taxpayer buys a service and then resells it in the same form to its contractor. Thus, with regard to the telecommunications service, the Applicant is entitled to issue an invoice to the lessor at the rate appropriate for the telecommunications service. In this case, all the above-mentioned conditions necessary for issuing an invoice are met (the Applicant does not use the telecommunications service, resells this service without margin, issues a re-invoice taking into account the rate indicated on the original invoice).

It should be noted that in this situation there is no "physical" provision of the service by the Applicant to the real recipient. The consequence of recognizing a taxpayer participating in the resale of a service as a service provider is the emergence of a tax obligation.

It should be borne in mind that the moment when a tax obligation arises has been regulated in detail in the act, which means that the legislator does not leave the taxpayer the freedom to decide when a tax obligation arises. Such freedom would de facto lead to a postponement of the tax payment deadline.

The legislator did not introduce any specific provisions that would define the moment when the tax obligation arises in the case of resale of services, therefore the general principles set out in Art. 19 of the Act. These activities are taxed in a manner appropriate to their type.

As indicated above, in the present case, the Applicant is considered to be selling telecommunications services. Consequently, the Applicant is considered to be making the sale, also in terms of the moment when the tax obligation arises.

Thus, with regard to determining the moment when the tax obligation arises in the present case regarding the resale of telecommunications services by the Applicant, the above-mentioned Art. 19 paragraph 13 point 1 lit. b) of the VAT Act, therefore in this case the payment deadline is important, as specified in the agreement applicable to settlements for these services, while the agreement applicable to settlements for the resale of goods and services under the rental service is not a contract with a provider of services related to with the operation of the premises, but a contract concluded between the landlord and the user of the lease. This date may be set by the parties freely, in accordance with the principle of freedom of contract formation (art. 353 # 185; the Act of 23 April 1964 - Civil Code (Journal of Laws No. 16, item 93, as amended) .

At the same time, it should be noted that the reference by the Applicant to the judicial decisions may not affect the assessment of the correctness of the issue in question. Without negating the case law, as a valuable source of indicating directions for the interpretation of tax law norms, it should be noted that the tax authority is obliged to treat each case individually, while court decisions are made on the basis of the evidence collected in a given case.

The interpretation concerns the actual state of affairs presented by the Applicant and the legal state in force on the date of the occurrence of the event in the presented state of affairs.

The party has the right to lodge a complaint against this interpretation of tax law due to its inconsistency with the law. The complaint is lodged with the Provincial Administrative Court in Lublin, ul. MC Skłodowskiej 40, 20-029 Lublin, after a prior written request from the authority that issued the interpretation within 14 days from the date on which the complainant learned or could learn about its issuance - until the violation of the law was remedied (Article 52 § 3 of the Act on on August 30, 2002 - Law on proceedings before administrative courts - Journal of Laws No. 153, item 1270, as amended). A complaint to the Voivodship Administrative Court (in two copies - Art. 47 of the above-mentioned Act) shall be lodged within thirty days from the date of delivery of the authority's response to the summons to remedy the infringement of the law, and if the authority did not reply to the summons, within sixty days from the date of submitting the complaint. summons (Art. 53 § 2 of the above-mentioned Act).

The complaint is lodged through the body whose action or inaction is the subject of the complaint (Article 54 § 1 of the above-mentioned Act) to the following address: Tax Chamber in Łódź, National Tax Information Office in Piotrków Trybunalski, ul. Wronia 65, 97-300 Piotrków Trybunalski.