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Irish Revenue Commissioners issue VAT guidance following the Deutsche Bank case

AUTHOR(S): Greg Lockhart
PRACTICE AREA GROUP: Tax
DATE: 15.10.2015

On 4 September 2015, the Irish Revenue Commissioners (“Revenue”) issued updated guidance to confirm their position on the VAT treatment of discretionary portfolio management services following the Court of Justice of the European Union (“CJEU”) decision in Finamzamt Frankfurt am Main –v- Höchst Deutsche Bank (C-44/11).

This guidance does not affect the VAT treatment of portfolio management services provided to funds. These services should continue to be exempt from Irish VAT as management services provided to specified special investment funds.

However, discretionary portfolio management services provided to other entities or individuals may no longer be separated to their composite parts as advisory services which are subject to VAT and execution services which are exempt from VAT.  Both services should now be treated as a single economic supply which is subject to VAT where the fact pattern in the Deutsche Bank case is replicated.

Background

Prior to the Deutsche Bank decision, Revenue had treated portfolio management services as being comprised of several separate elements. Accordingly, where separately identifiable services were provided by a portfolio manager, each service could be treated separately for VAT purposes provided:

(i) there was a legal management services agreement in place;

(ii) the separate elements were clearly identifiable in the services agreement;

(iii) the basis for apportionment of the fee was realistic, and

(iv) the activities in question were actually undertaken.

This effectively allowed portfolio managers to treat a portion of their total fee as VAT exempt (the portion which related to the buying and selling of securities) on the basis of the exemption for transactions in shares and other securities provided in Article 135(f) of Directive 2006/112 (the “VAT Directive”).

The Deutsche Bank decision

The CJEU in Deutsche Bank was asked to consider:

  • whether the bundle of advisory and execution services provided to client investors constituted a single supply; and
  • if so, whether that portfolio management service should be VAT exempt as a dealing in securities.

The CJEU held that Deutsche Bank’s execution and advisory elements were each essential elements in carrying out the portfolio management service as a whole. Taken together, they were held to be so closely linked that objectively, they formed a single, inseparable economic supply which would be artificial to split.

The CJEU then considered whether such single economic supply should fall to be exempt or not. The CJEU noted that the exemption for dealings in shares covers transactions to “create, alter or extinguish” parties’ rights and obligations in respect of securities. The CJEU considered that as this was only part of the overall service.  The CJEU held that given the requirement to strictly interpret the scope of EU VAT exemptions, Deutsche Bank’s portfolio management services must be taxable.

Change in position

Revenue have now confirmed that following the decision in Deutsche Bank, they will no longer accept the splitting of portfolio management service fees between exempt and non-exempt elements for VAT purposes.  Rather, the supply of portfolio management services to client investors will be treated as a single supply consisting of (i) analysing and monitoring the assets of client invested; and (ii) purchasing and selling securities.  That supply will be subject to VAT at the standard rate.

However, Revenue have stated that where fees are charged strictly for the purchase or sale of shares or securities, the exemption will continue to apply where:

a) the contractual arrangements reflect that fees are being charged on a transaction by transaction basis; and

b) the arrangements are correctly reflected on the invoices.

Revenue have confirmed that they will not seek to apply the Deutsche Bank decision retroactively.

Authored by Greg Lockhart and Matthew Broadstock , this article first appeared in the International Tax Review, 1 October 2015.

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