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When an insurance claim is made for damage of the goods insured, some insurance contracts foresee that the goods are repaired by the service provider and not by a third party paid by the insurer. In these cases, the supply of the repair service is made to the insurer, which according to the B2B rule will be in a foreign jurisdiction if established abroad. Some insurance companies have used this scheme to their advantage and the UK tax authorities have now applied the Use and enjoyment provisions foreseen in Article 59 of the VAT Directive to bring the place of supply on these services to the UK when they are used and enjoyed in the country. For this provision to apply, the recipient of the service must be in a non-EU jurisdiction.
HMRC has recently published a Brief with details about these new rules which entered into force last 1 October 2016.
The Use and Enjoyment provisions are optional for all Member States. They are meant to reduce cases of double taxation or non-taxation due to inconsistencies between the place of supply rules in the EU and the same rules in non-EU countries. Most EU jurisdictions have introduced these provisions, some countries attract the place of supply to their territory when the service is used in such territory but the customer is in a non-EU country (so called ´negative Use and enjoyment´, aimed at tackling non-taxation) and some countries divert the place of supply to a non-EU country where the service is used when the customer is based in the EU (´positive use and enjoyment´, aimed at tackling double taxation). Most countries, however, have both, positive and negative provisions, in place.