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VAT e-Commerce - One Stop Shop

Exemptions

E-learning activities:

In Austria, general and vocational education provided by private schools and other comparable institutions are VAT exempt if the services are comparable to those provided by public schools. Services provided by private teachers who teach in public schools or comparable private schools are also VAT exempt. Basically, the VAT exemption is also applicable to certain e-learning activities.

Reference to the above may be found in Section 6 (1) (11) Austrian VAT Act and MN 874 ff. Austrian VAT guidelines.

Gambling activities:

In Austria, the exemption applicable to certain gaming and gambling activities also applies to gambling provided electronically. The exemption applies to:

- bets not falling under the Austrian Gambling Act and

- draws (according to Sec. 2 (1) Austrian Gambling Act) defined as games of chance which an entrepreneur arranges, organises, offers or makes accessible; for which players or others provided monetary benefit or benefit in kind to participate; and in which the prospect of monetary benefit or benefit in kind is offered by the entrepreneur, from players, or from others.

Gambling services performed with gambling machines and Video Lottery Terminals (centrally connected Terminals used for electronic lotteries) are excluded from the scope of the exemption.

Reference to the above may be found in Section 6 (1) no. 9 (d) Austrian VAT Act.

The taxable basis for supplies made with gambling machines or Video Lottery Terminals exclude paid out wins (reference can be found in Sect 4 (5) Austrian VAT Act). There is no specific guidance in the Austrian legislation regarding the VAT treatment of bonus points/credits earned as part of e-gambling activities and such treatment should be analysed on a case by case basis.

General:

The services provided by e-brokers may fall under the VAT exemption according to Section 6 (1) 8 Austrian VAT Act in case the services provided by the e-brokers could constitute, change or expire rights and obligations for the parties in relation to securities. In case the e-broker only provides material, technical or administrative services, which do not lead to legal or financial changes, the VAT exemption would not be applicable. There is no further exemption in the Austrian VAT Act under which the supply of telecommunications, broadcasting and electronic services provided to non-VAT taxable persons may fall.

Invoicing

Invoicing: No

Invoicing comment:

See Section 11 (1) Austrian VAT Act

Payments and reimbursements

As a Member State of consumption, do you require an additional claim before making a reimbursement?:

Total amount below 20 EUR NETP will have to ask MSCON for the reimbursement.

Reimbursement threshold as Member State of consumption:

No threshold

Release from payment of insignificant amounts of VAT:

Austria has not implemented rules under its domestic legislation whereby taxable persons are released from the payment of VAT where the amount due is insignificant.

Penalties for non compliance

Failure to register and late registration:

In Austria, the penalty for failure to register for VAT if done with intent can be up to EUR 5,000. No penalties according to the Austrian Fiscal Criminal Law Code apply if failure to register was due to mere negligence.

Reference to the above may be found in Section 51 in connection with Section 50 (2) of the Austrian Fiscal Criminal Law Code.

Incomplete and incorrect VAT returns:

Periodic VAT returns which are incomplete and/or contain incorrect information can be corrected during the relevant fiscal year. In case the amended periodic VAT return or the annual VAT return results in additional VAT being due, the Austrian tax authorities generally impose a penalty for late payment of VAT. Fiscal criminal law implications may also apply.

Mitigation is possible when filing a voluntary disclosure.

Non-compliance with invoicing and accounting obligations:

Furthermore, if accounts are not kept in accordance with VAT requirements, VAT may be assessed based on the auditor's estimation. According to Section 111 (3) Austrian Federal Fiscal Code penalties can be assessed up to EUR 5,000 by the tax authorities. Additionally, fiscal criminal law implications may also apply. Documents relating to turnovers declared via MOSS have to be kept on file for 10 years.

Reference to the above may be found in Section 25a and Article 25a Austrian VAT Act and Section 184 Austrian Federal Fiscal Code.

Non-payment and late payment of VAT:

The Austrian tax authorities generally impose penalties of 2% of the VAT due for late payment of VAT (overall up to 4% of the VAT due).

The Austrian tax authorities can initiate fiscal criminal law proceedings. A voluntary disclosure can mitigate penalties according to Fiscal Criminal Law.

Reference to the above may be found in Section 217 of the Austrian Federal Fiscal Code.

Non-submission and late submission of VAT returns:

For late submission of VAT returns a penalty (up to 10% of the VAT due) may be charged at the discretion of the tax authorities.

Reference to the above may be found in Section 135 of the Austrian Federal Fiscal Code. Fiscal criminal law implications may also apply.

Registration process

VAT Registration Process:

The registration for the MOSS (EU scheme) is available electronically via FinanzOnline (https://finanzonline.bmf.gv.at), the online portal of the Austrian tax authorities.

The registration for the MOSS (non-EU scheme) can be done through another portal (https://non-eu-mossevat. bmf.gv.at) of the Austrian Ministry of Finance.

Appointment of a VAT Agent:

In Austria, it is possible for agents to file returns on behalf of a taxpayer.

Time of supply – chargeability

Deferment and Cash Accounting Scheme:

General Rule:

In Austria, services usually become taxable at the end of the calendar month during which the service is provided. If an invoice is issued after that date, VAT becomes chargeable at the end of the second month following the service, at the latest. The latter does not apply to services subject to the reverse charge system.

Reference to the above may be found in Section 19 (2) Austrian VAT Act.

If an invoice is issued incorrectly with VAT, VAT becomes still due at the end of the month in which the invoice is issued.

Reference to the above may be found in Section 19 (3) and Section 11 (12) and (14) Austrian VAT Act.

If VAT is paid before the service/supply is rendered, VAT becomes due within the assessment period (monthly or quarterly) in which the payment was received (Section 19 (2) last sub-paragraph Austrian VAT Act). The cash accounting scheme is available in Austria for some taxpayers. This does not apply to services declared via the MOSS. Reference to the above mentioned may be found in Section 17 (1) Austrian VAT Act.

Rules concerning the MOSS:

Telecommunications, broadcasting and electronic services provided to non-VAT taxable persons have to be reported under the MOSS quarterly. Under MOSS, VAT becomes due at the end of the month during which the service is rendered. Deferral through later invoicing is not possible (Article 25a (13) Austrian VAT Act). For e.g. telecommunications services, taxpayers may assume that the service is provided when the invoice is issued (or the customer is charged). This applies only to continuous services (MN 2619 and 2620 Austrian VAT guidelines).

Please note that no cash accounting scheme is available with respect to services declared via the MOSS.

Continuous supplies:

In the Austrian VAT Act, there is no specific regulation as to when VAT becomes chargeable for continuous supplies. However, according to MN 2619 and 2620 Austrian VAT guidelines for continuous supplies of services (e.g. telecommunication), VAT may become chargeable when the relevant invoice is issued or the payment is made i.e. the VAT liability arises at the end of the calendar month during which the invoice was issued/the payment was made.

Although not legally required (regarding non-VAT taxable persons), in practice, telecommunications operators usually issue an invoice with respect to continuous supplies in order to gain certainty as to when VAT is chargeable.

Other rules

Other rules

Additional obligations deemed necessary for collecting VAT and preventing evasion (anti-avoidance measures):

Austria has not implemented any rules or anti-avoidance measures that may directly impact telecommunications, broadcasting and electronic services provided to non-VAT taxable persons. Nevertheless, the general anti-avoidance rule to be found in Section22 of the Austrian Federal Fiscal Code and which generally applies to VAT should be taken into account.

Bad Debt relief:

Bad debt relief is available in Austria. There are no specific rules in the Austrian VAT Act stipulating what evidence or proof is to be provided. Whether bad debt relief is available has to be ascertained on a case by case basis.

It has to be certain that the debt will never be paid (which is the case for instance if the debtor is bankrupt or if the taxable amount was reduced by a court decision or a comparison agreement). In any case input and output VAT have to be corrected accordingly. The mere non-payment of a debt does not constitute an irrecoverable debt.

Reference to the above may be found in Section 16 (3) (1) Austrian VAT Act and MN 2388 Austrian VAT Guidelines.

Re-valuation of services at open market value:

In Austria, the consideration for telecommunications, broadcasting and electronic services provided to non-VAT taxable persons may be deemed to be the open market value when provided to persons with personal, legal or financial ties (including employees) for non-business related reasons provided that:

- the consideration is lower than the open market value and the recipient of the service does not have the right or full right to input VAT recovery;

- the consideration is lower than the open market value and the supplier does not have the right or full right to input VAT recovery and the supply is subject to a VAT exemption according to Section 6 (1)(7) to (26) or Section 6 (1)(28) Austrian VAT Act (includes certain e-learning and gambling activities);

- the consideration is higher than the open market value and the supplier does not have the right or full right to input VAT recovery.

Reference to the above may be found in Section 4 (9) Austrian VAT Act.

Use and Enjoyment:

In Austria, there is a use and enjoyment rule applicable to telecommunications and broadcasting services provided to taxable and non-VAT taxable persons. Accordingly, if the place of supply is in a non-EU country and the service would not be subject to a comparable tax in that non-EU country, it will be taxable in Austria if used and enjoyed in Austria. However, the MOSS system is only available to report telecom broadcasting and electronic services to non-VAT taxable persons (Section 25a and Article 25a Austrian VAT Code).

Reference to the above may be found in Section 3a (16) Austrian VAT Act in connection with the regulation enacted through BGBl II Nr. 383/2003 as amended by BGBI II 2009/221 by the Federal Minister of Finance and in MN (Margin Number) 643 of the (non-legally binding) Austrian VAT guidelines which reflect the opinion of the Austrian tax authorities.

VAT Treatment of vouchers:

There are no concrete rules in the Austrian VAT Act with respect to vouchers, multi-purpose cards and phone cards. A distinction between different types of vouchers for different types of supplies is made in practice and in some instances a card or a voucher may be seen as e-money outside the scope of VAT. The VAT treatment is usually determined on a case by case basis.

Reference to the above may be found in MN 4 of the VAT guidelines of the Austrian tax authorities.