On 22 November 2021, the Belgian tax authorities published an addendum to their previous circular of 27 October 2021. This postponed the restriction of the VAT exemption for transport services directly linked to an export of goods to 1 April 2022. Later this restriction was postponed again, this time until 1 September 2022. Now it’s suspended until further notice.
According to Article 146(1)(e) of Council Directive 2006/112/EC of 28.11.2006 on the common system of value added tax, Member States shall exempt the supply of services, including transport and transactions ancillary to transport, but excluding the supply of services exempted in accordance with Articles 132 and 135 of Directive 2006/112/EC, where these are directly linked to the exportation or importation of goods covered by Articles 61 and 157(1)(a) of Directive 2006/112/EC.
In judgment ‘L.C. IK, Case C-288/16, of 29.06.2017, the Court of Justice of the European Union delimited the scope of this exemption with regard to transport services directly linked to the export of goods.
Adaptation of the Belgian interpretation
Circular 2021/C/96 dated 27/10/2021 modifies the application of the Belgian VAT exemption for transport services directly linked to an export of goods.
The exemption for transport services directly linked to the export of goods, provided for in Article 41, § 1, first paragraph, 3° of the VAT Code, can only apply in the relationship between the service provider on the one hand and the consignor or consignee of the goods to be exported on the other hand. More specifically, this concerns:
- the seller or buyer of the goods to be exported
- the owner, the lessee or the borrower of the goods to be exported
- the contractor who exports goods outside the Community for the purpose of repair, processing or adaptation
- the person who re-exports outside the Community goods received on approval, by way of a sample or on consignment
- the person who re-exports goods outside the Community after they have been repaired, transformed, processed or adapted by him.
If the supplier of services uses a subcontractor to supply the service of transporting goods, the service supplied by the subcontractor cannot be exempted from VAT pursuant to Article 41(1)(1)(3) of the VAT Code.
Application circular: suspended
The Circular of 27 October 2021 stipulated that the amendments would enter into force on 1 January 2022. After a first postponement until 1 April 2022, in order to give the taxable persons concerned the opportunity to comply with the limitation of the scope of application of the exemption in respect of goods transport services, the entry into force was postponed again, this time until 1 September 2022.
But now the VAT administration has decided to suspend the implementation of the restriction of the VAT exemption. Various European bodies will be consulted first on the aforementioned issue in order to ensure a uniform application among the Member States of the exemption in question.