S.I. No. 413/1992 - European Communities (Value-Added Tax) Regulations, 1992.

S.I. No. 413 of 1992.

EUROPEAN COMMUNITIES (VALUE-ADDED TAX) REGULATIONS, 1992.

I, BERTIE AHERN, Minister for Finance, in exercise of the powers conferred on me by section 3 of the European Communities Act, 1972 (No. 27 of 1972), and for the purpose of giving effect to Council Directive No. 77/388/EEC of 17 May 1977^(a) (as last amended by Council Directive No. 92/111/EEC of 14 December, 1992 amending Directive 77/388/EEC and introducing simplification measures with regard to value-added tax) hereby make the following Regulations:

^(a) O.J. No. L 145, 13 June 1977, p. 1.

1. (1) These Regulations may be cited as the European Communities (Value-Added Tax) Regulations, 1992.

(2) These Regulations shall be construed together with the Value-Added Tax Acts, 1972 to 1992.

2. These Regulations shall come into operation on the 1st day of January, 1993.

3. In these Regulations—

"the Principal Act" means the Value-added Tax Act, 1972 ;

"the Act of 1978" means the Value Added Tax (Amendment) Act, 1978 ;

"the Act of 1992" means the Finance Act, 1992 .

4. Section 1 of the Principal Act is hereby amended in subsection (1)—

( a ) by the substitution of the following definition for the

definition of "Community":

"'Community', except where the context otherwise requires, has the same meaning as it has in Article 3 of Council Directive No. 77/3881 EEC of 17 May, 1977 (as last amended by council Directive No. 92/111/EEC of 14 December 1992), and cognate references shall be construed accordingly,",

and

( b ) by the insertion after the definition of "establishment" of the following definition:

'"excisable products' means the products referred to in section 104 of the Finance Act, 1992 ;".

5. Section 3 of the Principal Act is hereby amended—

( a ) in paragraph (g) (inserted by the Act of 1992) of subsection (1):

(i) by the insertion in subparagraph (i) after "paragraph (b)" of ", (cc)", and

(ii) by the insertion of the following subparagraph after subparagraph (iii):

"(iiia) the transfer of goods for the purpose of having a service carried out on them,",

( b ) in subsection (6) (inserted by the Act of 1992):

(i) by the addition of the following proviso to paragraph (a):

"Provided that where the goods are dispatched or transported from a place outside the Community, the place of supply by the person who imports the goods and the place of any subsequent supplies shall be deemed to be where the goods are imported,",

(ii) by the insertion of the following paragraph after paragraph (c):

"( cc ) in the case of goods supplied on board vessels, aircraft or trains during transport, the places of departure and destination of which are within the community, the place where the transport began,",

and

(iii) in paragraph (d):

(I) by the deletion in subparagraph (ii) of "a taxable person in", and

(II) by the substitution of the following proviso for the proviso to the paragraph:

"Provided that this paragraph shall not apply to the supply of goods, other than goods subject to a duty of excise, where the total consideration for such supplies does not exceed or is not likely to exceed—

(A) in the case of goods to which subparagraph (i) relates, £27,000 in a calendar year, unless the supplier, in accordance with regulations elects that it shall apply, and

(B) in the case of goods to which subparagraph (ii) relates, the amount specified in the Member State in question in accordance with Article 28b. B(2) (inserted by Council Directive No. 91/680/EEC of 16 December 1991) of Council Directive No. 77/388/EEC of 17 May 1977 unless the supplier elects that it shall apply and registers and accounts for value-added tax in that Member State in respect of such supplies.",

and

( c ) by the addition of the following subsection after subsection (7) (inserted by the Finance Act, 1983 ):

"(8) Where a taxable person who is not established in the State makes an intra-Community acquisition of goods in the State and makes a subsequent supply of those goods to a taxable person in the State, the person to whom the supply is made shall be deemed for the purposes of this Act to have made that supply and the intra-Community acquisition shall be disregarded:

Provided that this provision shall only apply where—

( a ) the taxable person who is not established in the State has not exercised his option to register in accordance with section 9 by virtue of section 8 (3D), and

( b ) the person to whom the supply is made is registered in accordance with section 9.".

6. Section 3A (inserted by the Act of 1992) of the Principal Act is hereby amended—

( a ) in paragraph (a) of subsection (1)—

(i) by the insertion after "in a Member State" of "or by a flat-rate farmer in a Member State," and

(ii) by the insertion after "who is not entitled to elect to be a taxable person" of ", unless the said individual carries on an exempted activity",

( b ) in paragraph (b) of subsection (2) by the insertion after "that registration number" of ", unless the person acquiring the goods can establish that that acquisition has been subject to value-added tax referred to in Council Directive No. 77/388/EEC of 17 May 1977 in accordance with paragraph (a).",

( c ) in subsection (3) by the insertion of the following paragraphs after paragraph (a):

"( aa ) an activity in another Member State shall be deemed to be an exempted activity where the same activity, if carried out in the State, would be an exempted activity, and

( ab ) a person shall be deemed to be a flat-rate farmer in another Member State where, under similar circumstances, the person would be a flat-rate farmer in the State in accordance with section 12A, and",

and

( d ) by the addition of the following subsection after subsection (4):

"(5) Paragraph (b) of subsection (2) shall not apply where—

(i) a person quotes the registration number assigned to him in accordance with section 9 for the purpose of making an intra-Community acquisition and the goods are dispatched or transported from the territory of a Member State directly to the territory of another Member State, neither of which are the State,

(ii) the person makes a subsequent supply of the goods to a person registered for value-added tax in the Member State where the dispatch or transportation ends,

(iii) the person issues an invoice in relation to that supply in such form and containing such particulars as would be required in accordance with section 17 (1) if he made the supply of the goods in the State to a person registered for value-added tax in another Member State, and containing an explicit reference to the EC simplified triangulation arrangements and indicating that the person in receipt of that supply is liable to account for the value-added tax due in that Member State, and

(iv) in accordance with regulations, the person includes a reference to the supply in the statement referred to in section 19A as if it were an intra-Community supply for the purposes of that section.".

7. Section 8 of the Principal Act is hereby amended—

( a ) in subsection (1A) by the insertion after "goods" of "in the State",

( b ) by the substitution of the following subsection for subsection (2B) (inserted by the Act of 1992):

"(2B) ( a ) Where a person is a taxable person only because of an intra-Community acquisition of a new means of transport, then the person shall not, unless he so elects, be a taxable person for any purposes of this Act with the exception of subsection (4) of section 19.

( b ) Where

(i) a person is a taxable person only because of an intra-Community acquisition of excisable products, and

(ii) by virtue of this acquisition, and in accordance with Chapter II of Part II of the Finance Act, 1992 , and any other enactment which is to be construed together with that Chapter, the duty of excise on those products is payable in the State, the person shall not, unless he so elects, be a taxable person for any purposes of the Act with the exception of subsection (5) of section 19.",

( c ) by the insertion of the following subsection after subsection (3C) (inserted by the Act of 1992):

"(3D) ( a ) The provisions of paragraphs (b), (c) and (e) of subsection (3) shall not apply to a person who is not established in the State.

( b ) A person who is not established in the State shall, unless he opts to register in accordance with section 9, be deemed not to have made an intra-Community acquisition or a supply of those goods in the State where the only supplies by him in the State are in the circumstances set out in section 3 (8).",

and

( d ) in subsection (8) (inserted by the Finance Act, 1991 ) by the insertion of the following paragraphs after paragraph I of the proviso to paragraph (a):

"(IA) the requirement to issue an invoice or other document, in accordance with section 17, in respect of supplies to persons other than supplies between persons who are jointly and severally liable to comply with the provisions of this Act in accordance with subparagraph (ii), or

(IB) the requirement to furnish a statement in accordance with section 19A, or".

8. Section 10 (inserted by the Act of 1978) of the Principal Act is hereby amended by the insertion of the following subsection after subsection (9):

"(9A) In relation to the tax chargeable by virtue of section 2 (1) (a) or 2 (IA), where an amount is expressed in a currency other than the currency of the State the exchenge rate to be used shall be—

( a ) unless paragraph (b) applies, the latest selling rate recorded by the Central Bank of Ireland for the currency in question at the time the tax becomes due,

( b ) where there is an agreement with the Revenue Commissioners for a method to be used in determining the exchange rate, the exchange rate obtained using the said method:

Provided that where paragraph (b) applies the method agreed in accordance with that paragraph shall be applied for all transactions where an amount is expressed in a currency other than that of the State until the agreement to use such method is withdrawn by the Revenue Commissioners.".

9. Section II of the Principal Act is hereby amended in subsection (1) (inserted by the Act of 1992) by the insertion in paragraph (b) after "paragraph (i)" of "or (ia)".

10. Section 12 of the Principal Act is hereby amended in paragraph (b) of subsection (1) (inserted by the Finance Act, 1987 )—

( a ) by the insertion of the following subparagraph after subparagraph (i):

"(ia) supplies of goods which, by virtue of section 3 (6) (d), are deemed to have taken place in the territory of another Member State:

Provided that the supplier is registered for value-added tax in that other Member State,",

and

( b ) by the insertion in subparagraph (iii) after "goods" of "(other than supplies of goods referred to in section 3 (6) (d) )".

11. The Principal Act is hereby amended by the insertion of the following section after section 15:

"15A. (1) Where—

( a ) goods from another Member State were imported into the State on or before the 31st day of December, 1992, and

( b ) the tax referred to in section 2 (1) (b) was not chargeable because the goods were, at the time of such importation, placed under one of the arrangements referred to in subparagraph (b) or (c) of paragraph 1 of Article 14, or subparagraph A of paragraph 1 of Article 16, of Council Directive No. 77/388/EEC of 17 May 1977, and

( c ) the goods are still subject to such an arrangement on the 1st day of January, 1993,

then, the provisions in force at the time the goods were placed under the arrangement shall continue to apply in relation to those goods until such time as, in accordance with those provisions, the goods cease to be covered by those arrangements.

(2) ( a ) Notwithstanding the definition of 'importation of goods' in section 1, an importation within the meaning of that definition shall be deemed to occur in the following cases:

(i) where goods have been placed under an internal Community transit operation in another Member State before the 1st day of January, 1993, and the operation terminates in the State on or after that date;

(ii) where goods referred to in subsection (1) cease to be covered by the arrangements referred to in that subsection;

(iii) where goods are returned to the State after the 1st day of January, 1993, being goods which were exported from the State before that date and imported into another Member State in accordance with any of the arrangements referred to in subsection (1) (b).

( b ) In this subsection 'internal Community transit operation' means the dispatch or transport of goods under cover of the internal Community transit arrangement referred to in paragraph 3 of Article 1 of Council Regulation (EEC) No. 222/77 of 13 December 1976^(a), or under the cover of a T2L or equivalent document provided for in that Regulation and includes the sending of goods by post.

^(a) O.J. No. L 38, 9 February 1977, p. 1.

(3) The tax referred to in section 2 (1) (b) shall not be chargeable in the cases referred to in subsection (2) where—

( a ) the goods are dispatched or transported outside the Community,

( b ) the goods are other than a means of transport and are being returned to the State and to the person who exported them from the State, or

( c ) the goods are a means of transport which was acquired or imported before the 1st day of January, 1993, and in respect of which value-added tax referred to in Council Directive No. 77/388/EEC of 17 May 1977 has been paid in a Member State and that value-added tax has not subsequently been refunded because of exportation from that Member State of the means of transport:

Provided that this paragraph shall be deemed to be complied with where it is shown to the satisfaction of the Revenue Commissioners that the first use of the means of transport was prior to the 1st day of January, 1985, or that the tax due does not exceed £100.

(4) In this section, references to subparagraph (b) or (c) of paragraph 1 of Article 14, and to subparagraph A of paragraph 1 of Article 16, of Council Directive No. 77/388/EEC of 17 May 1977 shall be deemed to be references to those provisions of the Directive immediately prior to their amendment by Council Directive 91/680/EEC^(a) of 16 December 1991.".

^(a) O.J. No. L 367, 31 December 1991, p. 1.

12. Section 17 of the Principal Act is hereby amended in subsection (1) by the deletion after "to another taxable person or" of "goods".

13. Section 19 of the Principal Act is hereby amended by the insertion of the following subsection after subsection (4) (inserted by the Act of 1992):

"(5) Notwithstanding the provisions of subsection (3), where the provisions of section 8 (2B) (b) apply, the tax shall be payable at the time of payment of the duty of excise on the goods as if it were that duty of excise."

14. The Second Schedule (inserted by the Finance Act, 1976 ) to the Principal Act is hereby amended by the insertion of the following subparagraph in paragraph (i) (inserted by the Act of 1992) after subparagraph (c):

"( cc ) being excisable products dispatched or transported from the State to a person in another Member State when the movement of the goods is subject to the provisions of Chapter II of Part II of the Finance Act, 1992 , and any other enactment which is to be construed together with that Chapter, which implement the arrangements specified in paragraph 4 and 5 of Article 7, or Article 16, of Council Directive No. 92/12/EEC of 25 February 1992^(b),".

^(b) O.J. No. L 76, 23 March 1992, p. 1.

GIVEN under my Official Seal, this 22nd day of December, 1992.

BERTIE AHERN,

Minister for Finance.

EXPLANATORY NOTE.

These Regulations, which have effect from 1 January 1993, implement EC Council Directive 92/111/EEC relating to the introduction of the transitional arrangements for the levying and collection of VAT in the Single Market. The Regulations supplement the detailed measures already introduced in the Finance Act, 1992 (No. 9 of 1992).