Issue
VAT is a tax on supplies of goods and services. Therefore, no VAT is due if no supply takes place. As part of business arrangements, businesses will often make payments to compensate each other for any loss, omissions or other wrongdoings. A question arises whether VAT is due on such payments.
Summary
Where a payment is not consideration for supply, no VAT is due on the payment.
Detailed discussion
Under Article 2 of the Federal Decree-Law No. 8 of 2017 on Value Added Tax (“VAT Law”), VAT is imposed, among other things, on taxable supplies of goods and services.
“Taxable supply” is defined in Article 1 of the VAT Law as a “supply of goods or services for a consideration by a person conducting business in the State, and does not include exempt supply”.
As a consequence, in order for an obligation to charge VAT to arise, there must be a supply of goods or services. If any payment does not relate to a supply of goods or services then the payment is not subject to VAT.
The question of whether or not a payment is consideration for a supply is the matter of fact. Typically, this requires the taxpayer to consider the underlying arrangements that give rise to the payment in order to determine whether the payee has provided anything in return for the payment.
Below, a number of situations are considered where a payment may or may not be treated as being consideration for a supply of goods or services. It should be noted that the purpose of the discussion is not to provide answers for all types of payments that might be made in such situations, but to give an example of principles that should be used in determining whether VAT should be due on compensation-type payments.