Tourist services and their classification and VAT

Service-Tax

In recent years, we have been observing an intensive development of tourist services. These are activities aimed at satisfying the material and non-material needs of tourists. There are very extensive tourist services on the market, which are tailored to the needs of demanding customers. Tourist offices also offer individual services aimed at less wealthy clients. In the VAT Act, the legislator provided for specific procedures for their taxation.Thus, from the point of view of a taxpayer running a travel agency, it is very important to establish whether he actually provides travel services.

Tax base for tourist services

Pursuant to Art. 5 sec. 1 point 1 of the Act of March 11, 2004 on tax on goods and services (i.e. Journal of Laws of 2017, item 1221), hereinafter referred to as the "VAT Act", the tax is subject to the paid supply of goods and the paid provision of services on the territory of the country.

By the delivery of the goods referred to in Art. 5 sec. 1 point 1 - in the light of Art. 7 sec. 1 of the VAT Act - means the transfer of the right to dispose of goods as the owner. Pursuant to Art. 8 sec. 1 of the VAT Act, through the provision of services referred to in art. 5 sec. 1 point 1 shall be understood as any service provided to a natural person, legal person or organizational unit without legal personality, which does not constitute a supply of goods within the meaning of art. 7.

As a rule, the tax base, in accordance with Art. 29a paragraph. 1 of the VAT Act, subject to sec. 2-5, art. 30a-30c, art. 32, art. 119 and art. 120 paragraph 4 and 5, is everything that is the payment that the supplier of goods or the service provider has received or is to receive for the sale from the buyer, recipient or third party, including received subsidies, subsidies and other payments of a similar nature, having a direct impact on the price goods or services provided by the taxpayer.

In relation to tourism services, the legislator has provided for special procedures that concern, inter alia, determining the tax base for these services.

Pursuant to Art. 119 paragraph. 1 of the VAT Act, the taxable amount for the provision of tourism services is the amount of the margin reduced by the amount of tax due, subject to paragraph 5.

Tourist services - margin within the meaning of the VAT Act

The definition of the margin in tourist services is included in Art. 119 paragraph. 2 of the VAT Act. In the light of Art. 119 paragraph. 2 of the VAT Act by the margin referred to in paragraph 1, is understood to mean the difference between the amount to be paid by the buyer of the service and the actual costs incurred by the taxpayer for the acquisition of goods and services from other taxpayers for the direct benefit of the tourist; services for the direct benefit of the tourist are understood as services constituting an element of the provided tourism service, in particular transport, accommodation, meals and insurance.

Pursuant to Art. 119 paragraph. 3 of the VAT Act, the provision of para. 1 shall apply regardless of who purchases the tourism service, where the taxpayer:

  • acts for the buyer of the service on his own behalf and for his own account;

  • when providing the service, it purchases goods and services from other taxpayers for the direct benefit of the tourist.

Pursuant to Art. 119 paragraph. 3a the taxpayers referred to in paragraph 1. 3, are required to keep the records referred to in article 1. 109 The obligation to keep sales records, para. 3, taking into account the amounts spent on the purchase of goods and services from other taxpayers for the direct benefit of the tourist and to have documents from which these amounts result.

Attention

The taxpayers referred to in article 1. 119 paragraph. 3 of the VAT Act, there is no right to reduce the amount of tax due on the amount of input tax on goods and services purchased for the direct benefit of the tourist.

Start a free 30-day trial period with no strings attached!

Tourism service definition

The Polish legislator did not provide a legal definition of the term "tourism services" in the VAT Act. Moreover, the Act does not refer to the definitions contained in other normative acts.

The definition of the tourism service can be found in the content of Art. 307 of Directive 2006/112 / EC of the Council of 28 November 2006 (Journal of Laws UE L 347, p. 1, as amended) - previously art. 26 sec. 2 first sentence of the Sixth Directive. Pursuant to the referred to Art. 307 of Directive 2006/112 / EC of the Council, transactions made by travel agencies in the implementation of travel are considered as a single service provided by the travel agency for the tourist. The concept of "single service" within the meaning of that provision includes supplies that are acquired from other taxable persons.

In turn, the Dictionary of the Polish Language (Wydawnictwo Naukowe PWN, Warsaw 2005, p. 1052) defines this concept as: "Organized trips outside the place of permanent residence for a longer or shorter stay, wandering in a foreign territory for sightseeing or health purposes".

The World Tourism Organization (WTO) recommends for statistical purposes the following definition of tourism: "Tourism covers all activities of persons who travel and stay for recreational, professional or other purposes for no more than a year without a break outside their everyday environment, excluding trips where the main purpose is gainful activity."

Therefore, it should be assumed that a tourism service is understood as a service provided to a tourist, which covers partial services without which a given tourist event could not take place. Therefore, package or individual leisure trips combined with recreation and entertainment (ie a comprehensive program of events) should be considered as tourist services. It is also consistent with the common understanding of the word tourism - in the Polish language dictionary "tourism" means longer or shorter leisure trips, usually combined with sightseeing, sports, excursions, etc. (Dictionary of the Polish Language, PWN Library of Gazeta Wyborcza).

From the content of art. 4 of the Act of August 29, 1997 on tourist services (i.e. Journal of Laws of 2016, item 187, as for the provision of tourist services is a regulated activity within the meaning of the Act of 2 July 2004 on the freedom of economic activity and requires an entry in the register of tourism organizers and tourist intermediaries, hereinafter referred to as the "register".

The terms used in the Act should be understood as:

  • tourist services - guide services, hotel services and all other services provided to tourists or visitors;

  • tourist event - at least two tourist services forming a uniform program and subject to a common price, if these services include overnight accommodation or last more than 24 hours, or if the program provides for a change of place of stay (Article 3 (1) and (2) of the above-mentioned Act).

Taking into account the above definitions, it is difficult to unequivocally answer the question of what can be considered a tourist service in the light of the VAT Act.

Can only a comprehensive service be considered a tourist service?

The tax authorities are of the opinion that the tourist service taxed on the basis of a margin cannot be the resale of the hotel service (without additional services related to the tourist service). When running a travel agency, taxpayers purchase hotel services from global suppliers. Tourists usually purchase a comprehensive service (apart from the hotel service, it also includes additional leisure services). Travel agencies sometimes sell only previously purchased hotel services when competing. In the case of resale, only the hotel service, the clients arrive at the place of rest themselves and arrange their meals. The above form of recreation is aimed at a less wealthy client. In such cases, the tax authorities believed that the hotel service was being resold and it could not be considered to be a tourist service.

The above position was not approved by the administrative court of both first and second instance.

In the judgment of the Supreme Administrative Court of February 15, 2017, file ref. act I FSK 1554/15, we read:

"The position of the Supreme Administrative Court arising from the judgment referred to above should be shared, declaring that the opinion of the tax authority that the service of tourism within the meaning of Art. 119 of the VAT Act must be comprehensive, i.e. in relation to a hotel service, it must be combined with another service. This view is not justified by legal regulations, including Art. 307 of Directive 112. The regulation of this provision does not identify a service provided by a travel agency to a tourist as a comprehensive service, but refers to the treatment, for the purposes of taxation, of these services as a single service (regardless of their composition) taxed under the margin scheme.

As stated by the Court of Justice in the judgment of 12 November 1992 cited by the Court of first instance in the case C-163/91 Fiscal group Beheermaatschappij Van Ginkel Waddinxveen BV, Reisen Passagebureau Van Ginkel BV and Others, art. 26 of the Sixth Council Directive of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes - common system of value added tax: unified tax assessment base (77/388 / EEC - hereinafter "VI Directive") should be interpreted in such a way that it also covers travel agents and travel agencies which only provide the traveler with accommodation and the service of the traveler is not provided by them. In the opinion of the Tribunal, the fact that a travel agent and a travel agency provides a traveler only with an accommodation service, without a travel service (the tourist arrives and leaves his accommodation on his own) does not exclude the recognition that such a service falls within the scope of application of Art. 26 of the VI Directive. This judgment was issued under Art. 26 of the VI Directive, which is an equivalent of the provisions of Directive 112 analyzed in this case ”.

This judgment gives rise to taxation by travel agencies of single services purchased for the benefit of the tourist on a margin basis. Of course, it should be remembered that the tax authorities do not necessarily have to be guided by the theses of the above judgment, but taxpayers have the opportunity to challenge unfavorable decisions to the court, referring to the above judgment in their complaint.