Cross-Border Transfer of Going Concern: How to Prevent VAT Distortions When Applying the TOGC No-Supply Rule across Different Member States?

This study reviews the scope and requirements of the no-supply rule foreseen in Council Directive 2006/112/CE of 28 November 2006 applicable to the transfer of going concerns and critically analyses mismatches arising from the application of this rule in cross-border transactions. Grey areas still exist in this matter despite significant Court of Justice of the European Union (CJEU) case law developments. In fact, the different requirements and scopes of application of the no-supply rule as transposed by the Member States lead to different VAT consequences for transfers of going concerns (TOGC), which will be more onerous in some Member States than in others. As a result, unsolved mismatches may arise at the level of the involved taxpayers, affecting the competitiveness of Member States and opening doors to “TOGC shopping”. The study thus presents and analyses three proposals of initiatives/measures that may foster harmonization in this field and address said mismatches.