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Recording Obligations for Electronic Interfaces (Platforms)

As of 1 January 2020, the recording obligations in Sec 18 Austrian VAT Act 1994 [UStG 1994] will be extended to platforms and other electronic interfaces (hereinafter: platforms) which facilitate supplies without being liable for the VAT on those supplies. Platforms are e.g. portals, websites or electronic marketplaces.

From 1.1.2021 onwards platforms will be deemed to carry out the supplies of goods they facilitate by themselves, subject to the conditions of Sec 3 para 3a Austrian VAT Act 1994. This means that the platform becomes liable for the VAT and is subject to the general recording obligations pursuant to Sec 18 Austrian VAT Act 1994.

In addition to the above mentioned recording obligations, with effect from 1 January 2021 a due diligence obligation will be introduced for platforms “taking part” in a supply of goods (Sec 27 para 1 Austrian VAT Act 1994).

The legal basis for the aforementioned amendments are Sec 3 para 3a, Sec 18 paras 11 and 12 Austrian VAT Act 1994 as well as the Due Diligence VAT Regulation [Sorgfaltspflichten-UStV], Regulation on Sec 18 para 12 VAT BGBL II. Nr. 377/2019  and Art 54b et seqq of the VAT Implementing Regulation (EU) 282/2011. Further Information can also be found on this page and in para 2594 et seqq of the VAT Guidelines 2000 [Umsatzsteuerrichtlinien 2000].

 

Recording obligations for platforms, which facilitate a supply of goods without being liable for the VAT on these supplies

Which types of supply have to be recorded?

A platform is obliged to keep records for the supplies it facilitates (Sec 18 para 11 Austrian VAT Act 1994). The recording obligation applies to the following types of supplies:

  • Supply of goods, if the dispatch or transport ends in Austria and the customer is a person listed in Art 3 para 4 Austrian VAT Act 1994 (e.g. consumer or a small entrepreneur)
  • Supply of services to non-taxable persons (B2C, C2C), if the place of supply is (for VAT purposes) in Austria

The recording obligation (Sec 18 para 11 Austrian VAT Act 1994) does not impose an obligation for the plattform to appoint a fiscal representative in the sense of Sec 27 para 7 Austrian VAT Act 1994.

With effect from 1.1.0221, platforms which facilitate a supply of goods may under certain circumstances be deemed to carry out the supply by themselves. As from 1.1.2021, these platforms are no longer subject to the recording obligations pursuant to Sec 18 para 11 Austrian VAT Act 1994, but to the general recording obligations applying to suppliers (see below).  

When is a platform „facilitating“ a supply?

The term ’facilitates’ is defined in Art 54b of the VAT Implementing Regulation (EU) 282/2011. A platform facilitates a supply if the use of the platform allows a customer and a supplier offering services or goods for sale through the platform to enter into contact which results in a supply of goods or services through that platform.

A platform facilitates a supply if it either directly or indirectly

  • sets any of the general terms under which the supply is made and/or
  • is involved in the authorization of the payment made for the supply and/or
  • is involved in the ordering or in carrying out the supply of the goods or services.

A platform is “not facilitating” a supply if it merely

  • processes the payment in relation to the supply,
  • lists or advertises the goods or services, or
  • redirects or transfers customers to other platform, without further intervening in the supply.

Which information has to be recorded?

The facilitating platform must keep information listed in the Due Diligence VAT Regulation and in Art 54c para 2 of the VAT Implementing Regulation VO (EU) 282/2011. This includes:

  • the name, address and electronic address or website of the supplier;
  • the VAT identification number or the national tax number of the supplier (if available)
  • the bank account number or the number of the virtual account of the supplier (if available)
  • a description of the goods or services (a general description is sufficient, e.g. "sporting good")
  • the consideration or the value of the goods or services in Euro (including shipping cost but not including VAT and before the deduction of nay fess charged by the platform to the supplier) 
  • the place where the dispatch or transport of the goods ends or, in case of services, the place of the underlying supply
  • the time of supply or, in case of services, information in order to establish the time of the supply

Certain information only needs to be recorded and reported if available to the platform. Information is available if the platform receives the information when operating their business or if the information is available to a company which is in the same group of companies (pursuant to Sec 2 para 2 no 2 of the Austrian VAT Act 1994). However, information which is only available to third parties (e.g. only to the service provider) is not considered to be available to the platform.

In addition to the above mentioned information, a platform which facilitates the rental of residential property or accommodation including camping, must also record the address of the immovable property. In addition, the platform also has to record the number of nights known by the platform and the number of persons staying overnight. If the platform does not know the number of persons staying overnight, the number and type of beds booked must be recorded.

If the supplier submits wrong information to the platform, the platform does not become liable for the VAT on the facilitated supplies, if it did not know and cannot reasonably know that the information was incorrect (see para 2596 of the VAT Guidelines 2000; Art 5c of Implementing Regulation (EU) 282/2011).

Is the platform obliged to submit the records to the tax authorities?

If the total amount of the supplies that have to be recorded pursuant to Sec 18 para 11 Austrian VAT Act 1994 exceeds 1.000.000 Euro per calendar year, records have to be submitted electronically to the tax authorities by 31st of January of the following year at the latest. If the threshold is not exceeded, the records only have to be submitted at the request of the tax authorities.

How can the records be submitted to the tax authorities?

The submission of the records is stipulated in the Regulation on Sec 18 para 12 VAT BGBL II. Nr. 377/2019. For further information is provided in the Information on Technical Specifications.

How long does the platform have to keep the records?

The records must be kept for ten years from the end of the year in which the supply was made.

What are the consequences if the platform fails to fulfil the recording obligation under Sec 18 para 11 Austrian VAT Act 1994?

If the platform infringes its recording obligations under Sec 18 para 11 VAT Act 1994, it becomes liable for the VAT on these supplies (see paras 3461 et seqq of the VAT Guidelines 2000). However, the platform only becomes liable if it couldn’t assume with sufficient care that the taxpayer, the supply of which it facilitates, fulfils his tax obligations.

Furthermore, stricter obligations apply to platforms which have a recording obligation for facilitated supplies amounting to more than 1.000.000 Euro. As from 1.1.2021, this threshold also covers supplies which are deemed to be carried out by the platform itself.

 If the threshold is exceeded, the platform is also held liable if it

  • fails to submit the records to the competent tax authorities in time or
  • the consideration for the services facilitated exceeds 35.000 Euro per calendar year and the supplier of the service does not communicate at least one of the following information to the platform
    • his VAT identification number
    • his foreign VAT identification number, if the supplier is registered in the One-Stop-Shop, and the Member State of identification
    • other evidence which proofs that the supplier complies with his tax obligations.
       
  • the consideration for the supply of goods facilitated exceeds 10.000 Euro per calendar year and the supplier does not communicate at least one of the following information to the platform
    • his VAT identification number
    • the foreign VAT identification number, if the service provider is registered in the One-Stop-Shop, and the Member State of identification
    • other evidence which proofs that the supplier is complies with his tax obligations.

Recording obligations for supplies, which are deemed to be carry out by a platform (as from 1.1.2021)

Which types of supplies are deemed to be carried out by a platform?

As from 1.1.2021, a platform which facilitates certain supplies of goods will be deemed to carry out the supply by itself (Sec 3 para 3a Austrian VAT Act 1994). More precisely, the deeming provision applies to the following supplies:

  • import distance sales to a consumer (Sec 3 para 8a Austrian VAT Act 1994), if the individual value per consignment does not exceed 150 Euro
     
  • supplies of goods within the EU to a consumer by a supplier which is not established in the EU

The deeming provision neither applies to B2B supplies, nor to supplies of services.

Unless the platform has information to the contrary, the platform shall regard .) the person selling goods through the platform as a taxable person and .) the person buying those goods as a non-taxable person (Art 5d of the VAT Implementing Regulation (EU) 282/2011).

What recording obligations apply in respect of deemed supplies?

Platforms which are deemed to carry out supplies by themselves are subject to general recording obligations (Sec 18 para 1 Austrian VAT Act 1994). See paras 2521 to 2593 of the VAT Guidelines 2000.

Due diligence for platforms which "take part" in a supply

When is a platform “taking part” in a supply?

With effect from 1.1.2021, platforms taking part in a distance sale (including import distance sales) or in a supply of services become liable for the VAT on this supply, if they infringe their due diligence obligations.

A platform is taking part in a distance sale, if it

  • redirects consumers to the webshop or website of a supplier,
  • receives a consideration for the redirecting, the amount of which is dependent on the generated supplies and
  • the total amount of supplies resulting from the redirection exceeds 1.000.000 Euro.

Similar conditions apply to the supply of services.

To which types of supply does the due diligence obligation apply?

The due diligence applies with regard to

  • intra-Union distance sales and import distance sales (Sec 3 para 8a Austrian VAT Act) and
  • B2C supplies of services

if the legal threshold – which amounts to 10.000 Euro for distance sales and 35.000 Euro for supplies of services, both through the platform  – is exceeded. These thresholds are calculated by the total amount of the consideration for distance sales/services supplied to consumers in Austria (or, in case of platforms who redirect consumers to the webshop or website of the suppliers, to consumers who have an Austrian IP address).

When does the platform violate its due diligence obligations?

In case of distance sales, a platform, who redirects consumers to the webshop or website of a supplier, infringes its due diligence if it does not receive at least one of the following information of the supplier

  • his VAT identification number
  • his foreign VAT identification number, if the supplier is registered in the One-Stop-Shop, and the Member State of identification
  • other evidence showing that the supplier complies with his tax obligations.

In case of a supply of service, a platform, who redirects consumers to the webshop or website of the supplier, infringes its due diligence if it does not receive at least one of the following information from the supplier

  • his VAT identification number
  • his foreign VAT identification number, if the supplier is registered in the One-Stop-Shop, and the Member State of identification
  • other evidence showing that the supplier complies with his tax obligations.

 
 

Further Information