The Value Added Tax (Amendment) (No. 5) Regulations 2009

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations, which come into force on 1st January 2010, amend Parts 3 (VAT invoices and other invoicing requirements), 4 (EC sales statements), 7A (flat-rate scheme for small businesses), 11 (time of supply and time of acquisition), 20 (repayments to Community traders) and 21 (repayments to third country traders) of the Value Added Tax Regulations 1995 (S.I. 1995/2518) (“the Principal Regulations”).

Regulation 3 inserts a new regulation 15A (change of rate, supplementary charge invoices). It requires a supplementary charge invoice to be issued in circumstances where a supplementary charge to VAT becomes due following the reversion of the VAT rate to 17.5 % on 1st January 2010 and specifies what such an invoice must contain.

Regulations 4 to 8 substitute new regulations 21 and 22, insert new regulations 22A to 22C, omit regulation 23 and substitute a new Form 12 in Schedule 1 to the Principal Regulations.

Articles 254 and 262 to 271 of Council Directive 2006/112/EC (“the Principal VAT Directive”) impose an obligation on taxpayers to provide information regarding cross-border movements of goods to persons registered for VAT in other member States and regarding supplies of new means of transport to unregistered persons in other member States.

Articles 262 to 271 were amended, with effect from 1 January 2008, by articles 2(9) and (10) of Council Directive 2008/8/EC (“the first amending directive”) and article 1(3) to (5) of Council Directive 2008/117/EC (“the second amending directive”) to require taxpayers to provide information about cross-border supplies of services to persons registered in other member States where the recipients of those supplies are liable to account for the VAT on them (“reverse charge”) and to specify new rules about the periods in respect of which information about cross-border supplies to taxable persons should be given.

The amendments made by regulations 4 to 8 implement these new requirements and reiterate the obligations regarding cross-border supplies of new means of transport. Regulation 21 provides definitions and interpretative provisions relevant to Part 4 of the Principal Regulations. Regulations 22 (goods) and 22A (services) define the circumstances which give rise to an obligation to provide information regarding cross-border supplies to registered persons in other member States, provides the Commissioners for Revenue and Customs (“the Commissioners”) with the power to specify the type of information required and defines the periods by reference to which the information must be supplied. Regulation 22B permits the information required under regulations 22 and 22A to be submitted electronically and specifies the time limits within which the information must be provided. Regulation 22C defines the circumstances which give rise to the obligation to provide information about supplies of new means of transport to unregistered persons in other member States, provides the Commissioners with the power to specify the type of information required and defines the periods by reference to which the information must be supplied.

Regulation 8 substitutes a new Form 12 for the purposes of providing information under regulations 22 (as amended) and 22A

Regulation 9 amends regulation 55K (flat rate scheme for small businesses, category of business) to substitute a new table with revised percentages to reflect the reversion of the VAT rate to 17.5% on 1st January 2010 and make other adjustments required to reflect the net tax payable by businesses which do not use the scheme.

Regulation 10 substitutes a new regulation 82 (services from outside the United Kingdom) which specifies when the services to which section 8(1) of the Value Added Tax Act 1994 (c. 23) applies (cross-border supplies of services subject to a reverse charge) (“section 8(1) services”) are to be treated as having been supplied.

The new regulation 82, in relation to section 8(1) services, gives effect to the provisions which determine the time of supply of services in articles 63 to 66 of the Principal VAT Directive, articles 64 and 66 of which were amended by article 1(1) and (2) of the second amending directive. From 1st January 2010 the derogation in article 66 of the Principal VAT Directive is no longer available to determine the time of supply of cross-border supplies of services which are subject to a compulsory reverse charge pursuant to article 196 of the Principal VAT Directive and a new rule is applied to determine the time of supply of such services where they are supplied continuously for a year without payment or invoicing.

The amendments made by regulation 10 implement the amendments made to articles 64 and 66 of the Principal VAT Directive by the second amending directive and apply the provisions of articles 64 to 66 to all section 8(1) services.

The new regulation 82 makes provision as to when (1) services performed up to and including 31st December 2009, (2) services performed after that date and (3) services supplied over a period which are invoiced or paid for periodically are treated as being made.

Regulations 11 to18 amend Part 20 of the Principal Regulations (repayments to Community traders) and implement Council Directive 2008/9/EC.

Regulation 11 amends definitions and interpretative provisions contained in regulation 173 of the Principal Regulations.

Regulation 12 inserts regulations 173A to 173X into the Principal Regulations. A business established in a member State other than the United Kingdom may claim from the Commissioners repayment of VAT incurred by the business on goods and services purchased in the United Kingdom that are used by the business for its business purposes if it submits a repayment application electronically using an electronic portal created by the tax authorities of the member State where the business is established.

Regulation 173A provides that the Commissioners must make repayment of VAT where a claim for repayment is made in accordance with Part 20 and the Commissioners are satisfied that it is valid.

Regulation 173B describes the VAT that may be repaid in accordance with Part 20.

Regulation 173C provides the extent to which certain VAT described in regulation 173B may be repaid.

Regulation 173D provides the circumstances in which a repayment of VAT made to the extent provided for by regulation 173C is liable to be adjusted after the making of the original claim.

Regulation 173E describes the persons eligible to make claims pursuant to Part 20.

Regulation 173F provides for the time when VAT is treated as incurred for the purpose of establishing the repayment period in respect of which a claim pursuant to Part 20 must be made.

Regulation 173G provides for the periods of time a repayment period may cover.

Regulation 173H sets the minimum total amounts that may be claimed in respect of a repayment period.

Regulation 173I specifies the requirements for a repayment claim pursuant to Part 20.

Regulations 173J and 173K provide for additional documentary evidence to be submitted at the time when a repayment application is made in respect of goods or services exceeding specified values.

Regulations 173L to 173O specify the information to be provided by a repayment application.

Regulation 173P provides for the day before which a repayment application in respect of a repayment period must be submitted using an electronic portal.

Regulation 173Q provides that the Commissioners must notify a claimant whether the claimant is entitled to repayment before the expiry of the relevant period applicable to the VAT in question and to state their reasons if they are not so satisfied.

Regulation 173R provides for the time by which a request for information or the production of a document required in order to satisfy the Commissioners whether a claimant is entitled to a repayment of VAT under Part 20 must be made and the circumstances in which such requests must be made by electronic means.

Regulation 173S provides that the relevant period applicable to any VAT for which repayment is claimed commences on the day the Commissioners receive the repayment application and ends 4 months after that day unless the end of the period is determined in accordance with regulations 173T or 173U.

Regulation 173T provides that the relevant period is extended where a request for information or the production of a document is made before the end of the relevant period applicable to the VAT in question.

Regulation 173U provides for the extension of the relevant period where more than one request for information or the production of a document is made.

Regulation 173V provides that, where a claimant is entitled to repayment of VAT under Part 20, the repayment must be made within 10 working days of the expiry of the relevant period.

Regulation 173W provides for the circumstances in which the Commissioners will pay interest where repayment is not made within in accordance with regulation 173V.

Regulation 173X provides for a person to pay back to the Commissioners an amount that has been paid to that person by way of interest under regulation 173W if that person was not entitled to the payment.

Regulation 13 omits regulations 174, 175, 176, 177, 178 and 179 of the Principal Regulations.

Regulation 14 amends regulation 181 of the Principal Regulations so that a claim under Part 20 is treated for the purposes of section 73 of the Act as a return required under paragraph 2 of Schedule 11 to the Act made in respect of a prescribed accounting period comprising the repayment period of the claim.

Regulation 15 omits regulations 182 and 183 of the Principal Regulations.

Regulation 16 amends regulation 194 of the Principal Regulations so that a claim under Part 21 is treated for the purposes of section 73 of the Act as a return required under paragraph 2 of Schedule 11 to the Act made in respect of a prescribed accounting period.

Regulation 17 omits regulation 195 of the Principal Regulations.

Regulation 18 provides that a claim for repayment of VAT in accordance with Part 20 of the Principal Regulations made before these Regulations come into force shall be determined and, if appropriate, repayment made in accordance with that Part as it stood before the amendments made by these Regulations.

A full Impact Assessment of the effects that the changes made by regulations 4 to 8 and 10 of this instrument will have on the costs of business and the voluntary sector is available from H M Revenue and Customs, 100 Parliament Street, London SW1A 2BQ and is annexed to the Explanatory Memorandum which is available alongside the instrument on the OPSI website (http://www.opsi.gov.uk).

A full Impact Assessment of the effects that the changes made by regulation 9 of this instrument will have on the costs of business and the voluntary sector is available from H M Revenue and Customs, 100 Parliament Street, London SW1A 2BQ and is annexed to the Explanatory Memorandum which is available alongside the instrument on the OPSI website.

A full Impact Assessment of the effects that the changes made by regulations 11 to 18 of this instrument will have on the costs of business and the voluntary sector is available from H M Revenue and Customs, 100 Parliament Street, London SW1A 2BQ and is annexed to the Explanatory Memorandum which is available alongside the instrument on the OPSI website.

A full Impact Assessment has not been produced in relation to the changes made by regulation 3 of this instrument as no impact on the private or voluntary sectors is foreseen.