The Company is a company established in Switzerland, has a Polish VAT registration, but it is registered for VAT as a non-resident business. The reason for this VAT registration is that the Company owns goods in Poland, which it sells from Poland to customers. The Company does not have any fixed establishment in Poland. The company is using logistics service providers throughout Europe to store, handle and transport company’s goods but does not rent or own any land or buildings (including warehouse space) outside of Switzerland.
In Poland one of the Polish supplier is charging VAT for these logistics services claiming these are related to land/property. Is it correct to charge VAT for these services?
Since 1 January 2010, service providers do not charge local VAT any longer for recipients non-established in Poalnd, but instead (should) apply the new VAT rules (article 44 VAT Directive). Based on this article, all services are subject to VAT in the country where the recipient of the service is established. Company is established in Switzerland, and does not have any other place of (fixed) establishment outside of Switzerland.
The Company does not rent any immovable property outside of Switzerland. They only enter into a “logistics services / handling / storage agreement” with suppliers. Furthermore, the agreements with service providers are, to my knowledge, not intended to be interpreted as being a rental agreement, and they lack some of the key elements to qualify as such. e.g. the Company does not have a key or exclusive and full access to the warehouse at any time, and it is the warehouse keeper who decides where and how the Company goods are stored and handled (within the specific guidelines and specifications that the Company requires of all its suppliers).
According to the text of the EU VAT Directive warehouse space is the provision of “specified areas of storage space, such as a room, cupboard or area for which someone is granted exclusive use. The space allocated must be specified in a license agreement. In many cases the customer is the only person with access to the goods (exclusive right)”.
The Company does not have exclusive right to immovable property in Poland. Where the service provider merely agrees to store the goods in a space of his choosing and no occupational rights are granted it is not a supply of land / immovable property – and not related to land or property.
However, issue of logistic/storage services is still disputable in Poland therefore most advisable would be to apply for a ruling to appropriate for taxpayer tax office to have written confirmation of their standpoint, as opinions in this matter may unfortunately vary among tax offices.