Fiskus lost before the Supreme Administrative Court dispute over the rate of VAT from the preamble to the so-called. klubików children.
Entertainment and fun
The case concerned a company which has a playroom equipped with, among others, the slides, climbing frames, a trampoline, ball pools, climbing wall, an educational games.
In the request for interpretation of the company explained that the service is also organizing events for groups (eg. to celebrate birthdays, birthdays). Admission for them is more expensive than an individual, as it included are catering services. In addition, some attractions are available at an additional charge, for example. Stunts clown, face painting. The taxpayer said that the rate of VAT is to tax the entrance to the playroom of an organized group, additional attractions and menu items.
The very thought that the entrance to the playroom benefits from reduced 8 percent. VAT. Such a possibility is provided for in Article. 41 paragraph. 2 of the Law on VAT, which enables you to show a preference for services listed in Annex 3. The company stressed that under item 183 of Annex lists the entrance to the fairgrounds, amusement parks, discos, dance halls, and in heading 186 – services related to recreation only to enter. In its assessment playroom (livingroom) is within their range. The reduced rate also covers additional attractions as a comprehensive service.
Fiskus said that for services related to the introduction can be considered only to provide input based on the purchased admission tickets, which are limited to the so-called. passive participation.
This argument did not convince the Regional Administrative Court in Warsaw. In his opinion, admission is not limited to passive participation in any event. Admission to the event is organized on an occasional playroom means getting within such services not only entry but also benefit from the facilities located there or additional services. However, in assessing the WSA additional services not alter the nature of comprehensive home services, ie. The event of a recreation center.
By maintaining in force the ruling, the Supreme Administrative Court for formal reasons not addressed the issue of the complexity of the benefits at issue. As a rule, however, he had no doubt that the entrance fee to the playroom, where all children enjoy the same interest, they may be covered by 8 percent. VAT.
Access to the public
– The concept of “admission “should be interpreted in accordance with the ordinary meaning – the judge said the NSA Roman Wiatrowski, referring to European case law.
According to the court does not rule out active use preferences. It is important to make it public, the same for everyone, and not individualized.
– espoused by the treasury division of participation in the passive, eg. In the theater, and an active, eg. In fitness clubs, is not based on regulations – underlines representative of the applicant company’s Przemyslaw Więcek, tax adviser of the company Lizyngodar.
In his opinion, the Supreme Administrative Court correctly observes that the reduced rate of VAT applies to services, entertainment and recreation. The fee for admission to the playroom is located so as to use the facilities of the object, such as the twisting slides, climbing frames, trampolines. The ruling is final.
Ref. act: I FSK 1401/14
Miroslaw Siwiński – legal advisor, tax advisor at the law firm of Prof. W. Modzelewski
The ruling of the Supreme Administrative Court fully deserves approval. In particular, it is to some extent an expression of the case-law resulting from the judgment of 30 January 2014 (ref. No. Act I FSK 311/13. These decision presents the most favorable interpretation services “in terms of access” rightly backed by judgment C-3/09. Lack of opportunities individualising benefits received appeals because for the application of a reduced rate. It should be noted, however, that the tax authorities – as evidenced by this case – still do not respect the uniform, in principle, the idea of administrative courts. For this reason, unfortunately, expect to be that at all costs will try to show individualized benefits in specific factual situations.
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