Rules for determining the place of service provision

On July 1, 2011, a new EU implementing regulation No. 282/2011 of March 15, 2011 entered into force (it lays down implementing measures to Directive 2006/112 / EC and clarifies existing legal regulations) and is directly applicable in Poland. Some of the provisions of the EU regulation deal with the rules for determining the place of supply of services. It's worth taking a look at them.

General rules

The Council of the European Union in the provisions of Art. 26-29 of the new regulation established four types of services for which the place of supply is determined according to general rules:

• translation of texts (the exception here is the translation of texts for non-taxable persons established outside the territory of the Community;
• transactions where the entity grants taxpayers the right to broadcast football matches by television;
• comprehensive funeral services;
• provision of services entitling to apply for a tax refund on the basis of the provisions on tax refunds for taxpayers from other Member States.

Rules for determining the location of catering and restaurant services on board means of transport

• the place of provision of services for the transport of passengers within the territory of the European Union is determined on the basis of the distance traveled by the means of transport, and not by each passenger;
• the place of supply of services performed within the Community partly during the journey and partly outside of it is determined when the performance of the service begins;
• the place of provision of services during the transport of passengers outside the territory of the European Union is absolutely the place where these services are actually performed.

It should be noted that the exception here are catering and restaurant services performed on board ships, airplanes or trains, as the place of provision of these services is the place of departure of the passenger's transport.

Mail Order

The place of supply for goods dispatched or transported to another Member State is the Member State where dispatch or transport of the goods to the buyer began. In Poland, the mail order sales threshold is 160 thousand. PLN and when this threshold is exceeded in a calendar year, the place of delivery becomes the Member State where the shipment or transport ends. Exceeding the threshold poses many problems with determining the place of taxation of supplies before and after the crossing. The European Council decided in Art. 14 of Regulation No 282/2011 that the overrun does not change the taxation of supplies of goods made in the same year and before this threshold was exceeded. However, for that to happen, the supplier cannot exercise the option of taxing the supplies of goods in the buyer's Member State and the value of his supplies did not exceed the threshold in the previous year. It is worth mentioning that restaurant and catering services are not considered to be the delivery of ready or unfinished food, as they are additionally equipped with overwhelming supporting services.

Intermediaries

The place of supply of intermediary services is determined by the place where the transaction takes place. This rule applies both to the services of intermediaries acting in the name and on behalf of the provider and the recipient. On the other hand, the place of the provision of accommodation services by the intermediary in the hotel sector or in sectors with a similar function, not related to real estate, is determined:

• when the customer is a taxable person or a non-taxable legal person, but recognized as a taxable person - pursuant to art. 44 of the Directive (in Poland, pursuant to Art. 28b of the VAT Act);
• when the service recipient is not a taxpayer - pursuant to art. 46 of the Directive (in Poland, pursuant to Article 28d of the VAT Act).

Short-term rental of means of transport

The place for short-term rental of means of transport (continuous use of the means not exceeding 30 days, and in the case of vessels not exceeding 90 days) is the place where these means are transferred to the recipient. A means of transport is considered to be motor vehicles or other vehicles, as well as other devices used to transport people or goods from place to place, including those designed to be pulled, shifted and pushed by vehicles, and those which are designed and actually suitable for use for the purpose of transportation. These include: tractors and other agricultural vehicles, ships, planes, trailers and semi-trailers, railway wagons, vehicles specially adapted for the transport of sick or injured persons, cars, motorbikes, bicycles, tourist vehicles, tricycles and vehicles with mechanical or electric propulsion intended for disabled people. However, they are not containers or permanently immobilized vehicles. The time of continuous possession or use of the measure is determined on the basis of an agreement concluded by the parties. However, such a contract may be revoked if there are certain indications of the actual or legal status allowing for the determination of a continuous time.

Cultural, scientific, educational and similar activities

The place of provision of admission services to various types of events, fairs and exhibitions and related ancillary services is the place where the above-mentioned events take place. Admission services grant the right to enter a given event in the form of a single or season ticket and a single, period or subscription fee. This does not apply to charging a fee for the use of a gym, etc. On the other hand, auxiliary services are directly related to the admission to events and are provided separately for a fee to the person participating in the event (cloakroom, toilet).