Single service liable for application of multiple value-added tax rates?
The Supreme Court of the Netherlands has tabled a prejudicial question with the European Court of Justice concerning the application of multiple value-added tax rates to a single service. The issue in question had come up in the course of the third appeal in cassation concerning the combination of the museum visit to and guided tour of the “Amsterdam Arena” sports stadium.
Value-added tax rates
The Amsterdam Court of Appeal in the course of the initial appeal had already established that a combined museum visit and guided tour constituted a single indivisible service. The Bois-le-Duc Court of Appeal in the context of the third appeal went on to dismiss the suggestion of the fee being split to enable the application of the lower value-added tax rate to the museum visit (and the higher rate to the guided tour). The arrangement provided for a tour guide showing visitors around the facilities followed, once the tour was over, by the visitors being given the opportunity without supervision to stop by the Ajax museum (Amsterdam Arena being the home of AFC Ajax). Only those who had taken the tour were admitted to the museum, which rendered the museum visit subordinate to the guided tour of the grounds and justified the higher value-added tax rate applying.
The European Court of Justice in several of its decisions has expounded on the appropriate value-added tax treatment of combined performances. The gist of this has been that the average consumer needs to be taken as the point of departure in assessing whether the scenario in hand involves multiple distinctive principal services or a single service made up of one principal and one or more auxiliary services. More often than not this will involve the court assessing the particulars of the case and decide between the two.
All of this has made the Supreme Court wonder whether the implication of it having been established that the guided tour of the stadium and the museum visit are to be considered a single service should be that the service in question should be liable for just the one value-added tax rate. That particular ball is now in the ECJ’s court.
Dutch version: Toepassing verschillende btw-tarieven op één dienst?