A forthcoming draft law that would amend miscellaneous VAT provisions includes a new measure to enforce the collection of Belgian VAT on e-commerce transactions. The new legislation would impose joint liability on the taxable person that facilitates, through the use of an electronic interface, the supply of goods with, to, or within Belgium, on all business-to-consumer (B2C) transactions that are not subject to the deemed supplier rule introduced under EU legislation on 1 July 2021. If this (not yet published draft) legislation is adopted, marketplaces and platforms would have to set up due diligence processes as from 1 January 2024 to manage their joint liability risks on transactions by third party sellers.
At the EU level, measures have been taken to ensure the effective collection of VAT, reduce the risk of fraud, and minimize the administrative burden with respect to e-commerce activities. One of these measures was the introduction of the deemed supplier rule in article 14a of the EU VAT directive. Under this rule, a taxable person that facilitates, through the use of electronic interfaces such as marketplaces and platforms, certain supplies of goods within the EU, is deemed to have received and supplied the goods themselves for VAT purposes. Based on this rule, electronic interfaces now must collect and remit to the tax authorities VAT on B2C sales within the EU by non-EU established sellers, as well as on low value imported distance sales.
Article 205 of the VAT directive allows EU member states to designate a person other than the person liable for payment of the tax (in other words, a person other than the “primary” VAT payer) that can be held jointly and severally liable for the VAT due on certain transactions. The new draft legislation would make use of this option by extending the joint and several liability provisions in article 51bis of the Belgian VAT Code to taxable persons using an electronic interface to facilitate supplies. This liability would apply on all B2C supplies of goods for which the electronic interfaces are not designated as the “primary taxpayer” for VAT under the deemed supplier regime. Both Belgian-based and foreign operators of electronic interfaces would face this liability.
To align the new joint liability rule to EU VAT principles of proportionality, electronic interfaces would only be jointly liable if they have not acted in good faith, or if they committed any fault or were negligent. While, in principle, this should be demonstrated by the tax authorities that invoke the joint liability, the legislation would impose also certain minimal obligations on the marketplaces and platforms. Where these are not met, the taxable person using the electronic interface to facilitate supplies would be deemed to be negligent or to act in bad faith.
At a minimum, before allowing the sellers on the marketplace and at least once per calendar year, the electronic interface would be expected to verify whether the suppliers offering goods on the interface and making supplies in or to Belgium are correctly identified for VAT purposes. The explanatory notice mentions that electronic interfaces that facilitate transactions by occasional (private) sellers, that are not obliged to register for VAT, would have to actively seek and obtain explicit confirmation from these sellers that they are not acting as taxable persons for VAT purposes. Also, the marketplace would have to react properly and on a timely basis to specific notices from the Belgian tax authorities, in some cases by excluding the supplier in question from the marketplace.
The compliance burden on electronic interfaces facilitating supplies of goods in or to Belgium would increase significantly if this measure is adopted. They would be required to set up processes to demonstrate they acted in good faith and, at a minimum, they would have to perform seller VAT number validations and manage notices from the tax authorities to mitigate their joint and several liability risks.
In anticipation of the draft proposal being enacted into law, Deloitte can assist electronic interfaces in setting up reliable processes to help manage these new obligations and liabilities.
Danny is head of the tax advisory practice. He is a tax lawyer specialised in VAT, in particular with respect to real estate and financial transactions, as well as eco taxes and contributions. As partner in the firm, Danny focuses on VAT consulting for Belgian clients in the private and public sectors and the broad corporate market at national and international level. In the real estate industry, Danny focuses on VAT consulting for clients in the private (e.g. real estate developers, REITs, hospitals, senior housing, etc.) and public sectors and the broad corporate market at national and international level. Besides the specific VAT topics (e.g. reduced VAT rates, VAT exemptions), he has also good knowledge of alternative financing of real estate and transfer duties. Danny is a recommended lawyer in the Chambers Europe and Legal 500 directories.
Joaquim is a lawyer at Deloitte Legal, specialising in all VAT matters. He has over 10 years of experience in advisory services including guiding companies through administrative and court procedures. The majority of his clients are privately held companies and include real estate developers, law firms, health care suppliers and governmental institutions. Since 2009 he is a member of the Brussels bar. He published regularly on VAT matters and lectures at the KULeuven (University Leuven) on VAT aspects of real estate and is research assistant at the UGent (University of Ghent).