Opinion of the Advocate General — ECLI:EU:C:2018:667
Date: 2018-09-05
Language of the case: Polish
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Poland

Summary — Judgment of the Court (Fourth Chamber), 19 December 2018 1. Harmonisation of fiscal legislation — Common system of value added tax — Chargeable event and chargeability of the tax — Payments on account made before the supply of goods or services — Meaning — Payments on account made before the supply of travel services by an agency — Included — Condition — Precise designation of the services at the time the payment on account is made (Council Directive 2006/112, as amended by Directive 2010/45, Arts 65 and 306 to 310) 2. Harmonisation of fiscal legislation — Common system of value added tax — Special scheme for travel agencies — Determination of the margin obtained by travel agencies — Payments on account made before the supply of travel services by an agency — Taking into account of the estimated costs since those costs are not definitive at the time the payment on account is made — Lawfulness — Conditions — Inclusion of costs already incurred in the estimate — Correction of the value added tax returns at the time of receipt of the payment on account (Council Directive 2006/112, as amended by Directive 2010/45, Art. 308) 1. Articles 65 and 306 to 310 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, as amended by Council Directive 2010/45/EU of 13 July 2010, must be interpreted as meaning that, when a travel agent, subject to the special scheme laid down in Articles 306 to 310 of that directive, receives a payment on account for tourist services which it will provide to the traveller, the value added tax (VAT) is chargeable, in accordance with that Article 65, on receipt of that payment on account, provided that, at that time, the tourist services to be supplied are precisely designated. (see para. 36, operative part 1) 2. Article 308 of Directive 2006/112, as amended by Directive 2010/45, must be interpreted as meaning that the margin of the travel agent, and, consequently, its taxable amount, corresponds to the difference between the total amount, exclusive of value added tax (VAT), to be paid by the traveller and the actual input cost incurred by the travel agent in respect of supplies of goods and services provided by other taxable persons, in so far as those transactions are for the direct benefit of the traveller. When the amount of the payment on account corresponds to the total price of the tourist service or to a significant part of that price, and the travel agent has not yet incurred any actual cost, or has incurred only a limited part of the individual total cost of that service, or even when the individual actual cost of the trip incurred by the travel agent cannot be determined at the time when the payment on account is made, the profit margin can be determined on the basis of an estimate of the total actual cost which it will ultimately have to incur. For the purpose of such an estimate, the travel agent must take into account, where relevant, the costs which it has already actually incurred at the time of receipt of the payment on account. For the purpose of the calculation of the margin, the estimated total actual cost is deducted from the total price of the trip and the taxable amount for VAT to be paid at the time of receipt of the payment on account is obtained by multiplying the amount of that payment on account by the percentage corresponding to the part of the total cost of the trip that the estimated profit margin, thus determined, represents. The projected costs thus estimated must be linked to the actual tourist service in respect of which the payment on account was received by the travel agent, since that profit margin and the taxable amount must be determined by reference to each individual supply of services provided by the travel agent, namely individually and not globally, having regard to groups of services or all services supplied during a given period (see, to that effect, judgment of 8 February 2018, Commission v Germany, C‑380/16, not published, EU:C:2018:76, paragraphs 89, 91 and 92). That solution has no bearing on the fact that, as soon as the definitive actual individual cost of the trip is known to the travel agent, that cost must be taken into account for the determination of VAT, in accordance with Article 308 of the VAT Directive, by correcting, as necessary, the VAT returns prepared at the time of receipt of the payment on account. (see paras 46-48, operative part 2)