Grænsehandel - hvor går grænsen?

Within the European Union largely similar rules apply regarding VAT. These rules are based on the\nCouncil Directive 2006/112/EC of 28 November 2006 on the common system of value added tax,\nthereby creating a common system of VAT. However an area not yet fully hamonized is the VAT\nrates of the Member States, which are still differentiated. This gives way for utilization by\ncompanies establishing an arrangement of cross border trade by relocating the place of supply to a\nMember State with a lower VAT rate and thereby attaining a competitive advantage.\nThe Danish tax authorities have become aware of this problem and will not recognize these\narrangements. Recently, the Danish tax authorities initiate upheld in the Supreme Court of\nDenmark, which led to the reclassification of such an arrangement, on the grounds of non\nconsistency between the formal designation of the transactions and the objective circumstances.\nSince then the Danish tax authorities have ruled in accordance with this criteria and the recent\ncase-law bears witness to an increasingly stringent assessment of these cross border\narrangements. Furthermore the Danish tax authorities has stated, that such arrangements can be\nredefined based on another criteria being that of abuse practice.\nHowever, in order for Danish case-law to be legitimate it must be in compliance with EU-law. The\nEuropean Court of Justice (ECJ) has made several judgements of preliminary ruling regarding\nthese criteria in relation to VAT. A review of ECJ case-law thus illustrates the legitimacy of these\ncriteria in relation to VAT.\nA more detailed analysis of the conditions under which the first criteria is applied by the ECJ in\ncase C-185/01 Auto Lease however shows, that this criteria cannot necessarily be applied on\ncross border arrangements as is the case in Denmark. With regard to abuse the EJC states in\nCase 255/02 Halifax, that in the sphere of VAT an abusive practice can be found to exist only if two\nconditions are met, one of which being that the transactions concerned result in the attainment of a\ntax advantage, the grant of which would be contrary to the purpose of the relevant provisions.1 This\ncondition will not be met by companies engaging in place of supply planning, as these\nprovisions have the sole purpose of determining the place of supply unambiguously.

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