amending Implementing Decision 2009/1008/EU authorising the Republic of Latvia to extend the application of a measure derogating from Article 193 of Directive 2006/112/EC on the common system of value added tax

EXPLANATORY MEMORANDUM

Pursuant to Article 395(1) of Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (‘the VAT Directive’), the Council, acting unanimously on a proposal from the Commission, may authorise any Member State to apply special measures for derogation from the provisions of that Directive, in order to simplify the procedure for collecting VAT or to prevent certain forms of tax evasion or avoidance.

By letter registered with the Commission on 4 April 2021, the Republic of Latvia (hereinafter Latvia) requested the authorisation to continue to apply a measure derogating from Article 193 of the VAT Directive, which determines the person liable for the payment of VAT. With the same letter, Latvia sent a report on the application of that measure.

In accordance with Article 395(2) of the VAT Directive, the Commission informed the other Member States by letters dated 9 August 2021, and Spain by letter dated 10 August 2021, of the request made by Latvia. By letter dated 10 August 2021, the Commission notified Latvia that it had all the information necessary to consider the request.

1.CONTEXT OF THE PROPOSAL

•Reasons for and objectives of the proposal

As a general rule, Article 193 of the VAT Directive stipulates that the taxable person supplying goods or services is normally liable to pay VAT. Pursuant to Article 395 of the VAT Directive, Member States may apply measures derogating from the provisions of the VAT Directive to simplify the procedure for collecting VAT or to prevent certain forms of tax evasion or avoidance if they have been authorised by the Council. Latvia requested to continue to apply the reverse charge mechanism to timber transactions that entails to make the person to whom these goods or services are supplied liable for the payment of VAT. The derogating measure for Latvia had been initially granted by Council Decision 2006/42/EC until 31 December 2009 and by Council Implementing Decision 2009/1008/EU until 31 December 2012. The authorisation to apply the derogation has subsequently been extended by Council Implementing Decision 2013/55/EU until 31 December 2015, by Council Implementing Decision (EU) 2015/2396 until 31 December 2018, and by Council Implementing Decision (EU) 2018/2006 until 31 December 2021. According to Latvia, the timber market, which is one of the most important sectors of its economy, is particularly sensitive to VAT fraud, because it is dominated by a great number of small local operators and individual suppliers, and because it is very difficult to trace the movements of materials and related transactions. The businesses active in the sector may be not due to fulfil recording obligations and this may lead to undeclared transactions with private individuals for the supply of timber. Thus, there is a significant risk that some operators could evade payment of VAT. The nature of the market and of businesses involved has generated VAT fraud, which the Latvian tax authorities have found difficult to control. In order to combat this abuse, they have introduced the reverse charge mechanism to timber transactions, which has proven to be very effective and has decreased VAT fraud in this sector significantly. Moreover, this special measure does not have a negative impact on the total amount of VAT revenues collected at the final stage of consumption and thus, does not affect the Union's VAT own resources in a negative way, according to Latvia. Derogations are in general granted for a limited period of time as to allow an assessment whether the special measure is appropriate and effective and in order to grant Member States time to introduce other conventional measures at national level to monitor the movement of materials, the payment of VAT, and the compliance of taxable persons which should tackle the respective problem until the expiry of the derogating measure, thus making an extension of the derogation redundant. A derogation allowing making use of the reverse charge mechanism is only granted exceptionally for specific fraudulent areas and constitutes a means of last resort. Taking into consideration the unchanged legal and factual situation, it is therefore proposed to extend the derogating measure, allowing Latvia to continue to apply this derogating measure until 31 December 2024. Until the expiry of this derogation, Latvia should implement other conventional measures at national level to monitor the movement of materials, the payment of VAT, and the compliance of taxable persons which would underpin the fight and prevent the VAT fraud in the sector of timber.

•Consistency with existing policy provisions in the policy area

Similar derogations in relation to Article 193 of the VAT Directive have been granted to other Member States, Portugal, Romania and Lithuania. The proposed measure is, therefore, consistent with the existing provisions of the VAT Directive. 2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

•Legal basis