The reduced VAT rate was increased to 9% with effect from 1 January 2019. However, this is still considerably lower than the standard rate of 21%. This is a reason for businesses to investigate (or have investigated) whether their supplies can be (partly) classified under the reduced VAT rate. Of course, the applicable VAT rate is only really relevant if the customer is not entitled to deduct the VAT.
Sale of bedroom products
At Arnhem-Leeuwarden Court of Appeal An entrepreneur claims that he carries out various services through showrooms in Belgium and the Netherlands, as well as via a number of websites:
- he carries out the trial sleep service;
- he sells gift vouchers;
- He sells (bedroom) products.
Do not split artificially
The Court refers to a ruling from the Supreme Court in 2012. In that judgment, the Supreme Court ruled that, where two (or more) services are performed simultaneously, no artificial distinction may be made between them. Where there is a principal service, ancillary services must be attributed to it. A service is ancillary if it is not an end in itself, but a means of making the principal service as attractive as possible.
Trial sleep
The ‘try-before-you-buy’ scheme means that customers may try out purchased products for 14 days and return them free of charge if they wish. The Court ruled that this is not a service in its own right, but merely a measure designed to make the sale of the products more attractive. The ‘trial sleep’ is therefore included in the sale of the products for VAT purposes.
Gift voucher
The trader’s intention in issuing the gift voucher is to be able to supply the products VAT-free. The Court ruled that the customer is concerned with the purchase of the products, not with the gift voucher. The gift voucher can only be redeemed for a completely new bed. The customer pays the prices for these products. According to the Court, the appeal of the gift voucher lies solely in the VAT exemption which the trader believes is linked to it. The arrangement involving the gift voucher does not mean that no VAT is payable on the products supplied.
Mattresses
With regard to a number of mattresses, the trader argues that the reduced VAT rate applies to the supply. The Court of Appeal states, first and foremost, that, in accordance with established case law, the burden of proof that the reduced rate applies rests with the trader.
The trader has failed to convince the Court that the goods in question are anti-bedsore mattresses and allergen-free (mattress) covers, as described in item a.37 of Table I of the Value Added Tax Act. All supplies are therefore subject to the standard VAT rate (21%).