Volume 20 (2011) / Issue 4
This article discusses if EU value added tax (VAT) can be imposed on unlawful digital supplies by evaluating applicable criteria developed by the Court of Justice (COJ). Unlawful digital supplies are delimited to cover trade with digital materials that are copyright protected and exchanged through peer-to-peer networks without the permission of the copyright holder. The criteria that are evaluated for imposing EU VAT on these unlawful supplies covers the scope of VAT, whether the supplies can be seen as consumption, identification of the taxable supplier and if the supplies can be considered as taxable. The main difficulties with deciding if EU VAT can be imposed on unlawful digital supplies is in the argumentation used by the COJ in primarily two cases. The difficulties are, first, based on the Hong Kong Trade case, where the COJ interprets the scope of economic activity as not covering services supplied free of charge. Second, in the Tolsma case, the COJ discusses the need of a direct link establishing if there is a taxable transaction. For imposing EU VAT on unlawful digital supplies, the market place connecting the users and the organization providing the market place can rather be considered as an indirect link than a direct link establishing a legal relationship.
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