The courses offered by the ASD are not VAT exempt

A course with a blue Recreational or sporting purposes it does not benefit from VAT exemption as it is outside the scope professional training or education services (objective assumption). In fact, if the term “school or university teacher” is not included, the service will be subject to VAT.

With the answer to judgment no. 393 of 2022, the office conformed to its previous one (response to judgment 162 of 2020), where it was pointed out that the exemption regime (in this case it was flight courses) was recognized exclusively for courses aimed at a professional activity, as with the Characteristics of vocational training. Whereas if the teaching has a purely recreational or sporting purpose, i.e. is considered specialist, then it would be subject to VAT (in this case at the normal rate).

Asked the question to the agency

An amateur sports association, recognized as a legal entity and registered in the provincial register, had as its main objective the development and dissemination of sports activities related to the discipline of swimming and triathlon. In his activity, courses of various levels, mainly for children, on the basics and techniques of swimming were taught, also by the FIN (Italian Swimming Federation) Federal swimming school operating license. For these training activities, the ASD proposes the question of what VAT treatment is applied to the fees, to the Office to re-enter the field of art. 10, no. 20, Presidential Decree No. 633/1972 as a training body and its swimming training activity is exempt from the tax value.

The opinion of the agency

The tax administration recalls the VAT directive no. 2006/112, especially on Art. 132, which lists the operations that Member States may exempt from VAT, including the educational operations of childhood and youth and from University school teachingincluding the Training or the professional trainingprovided that the same are carried out by public law bodies with the same purpose or other bodies recognized by the Member State concerned as having similar purposes (Circular No. 22 / E / 2008).

In addition to EU legislation, Art. 10, no. 20), Presidential Decree No. 633/1972 which the VAT exemption for the educational achievement of childhood and youth and that didactic of any kindalso for education, updating, further training and professional reconversion, which are recognized by educational establishments or schools recognized by the PA or third sector entities of a non-commercial nature.

Therefore, the internal regulation, in parallel with the regulation of the VAT Directive, makes the application of the VAT exemption to the materialization of two assumptions (objective and subjective), and states that the services to which it refers:

– they must be of an educational or didactic nature, including education, updating, further training and professional reconversion;

– must be provided by institutions or schools recognized by the PA (Resolution No. 308 / E / 2007 and Circular No. 22 / E / 2008).

As for the subjective assumptiona “purely descriptive” value must be attributed to the concept of “institutes or schools” in relation to the subjects that preside over these activities, and therefore not the sense of an exhaustive list of the subjects admitted for the use of the exemption regime become

The exemption must then be considered effective, even if the recognition of institutions or schools is carried out for reasons of specific competence by a state administration other than the school and the recognition must concern the educational, didactic course that the body intends to carry out ( Resolutions n.308 / E / 2007 and n.53 / E / 2007).

The intervention of the EU Court of Justice

The intervention of the court makes it possible to frame the next one better objective profile.

In fact, the Union judges, first delivered with the sentence in the case C-449/17 of March 14, 2019, concerning Car driving lessons of a driving school and then (Judgment C-373/19 of October 21, 2021) precisely in terms of swimming lessons to the children of a swimming school and in terms of teaching the basics and techniques of swimming, have specified the scope. the application of Art. 132, letters i) and j), directive n. 2006/112/EC.

In detail, the notion of “School or university teachers“, achieve a ‘restrictive interpretation of the related exceptions, because these constitute one derogation the general principle according to which the VAT is levied for any supply of services carried out by a taxable person against consideration, without however depriving the exceptions of their effect.

But at the same time, since this provision does not contain a definition of the term “school or university teaching”, this concept cannot be limited to courses that end with examinations aimed at the qualification, or that involve the acquisition of training for Exercising a professional activity, but also other activities where education is provided in schools or universities to develop the knowledge and skills of pupils or students, provided that these activities are not purely recreational activities (Court of the EU C-473/08 and C-449/17).

In fact, the court emphasized that school or university teaching is a concept that actually includes other activities that differ both by their specific nature and by the context in which they are carried out, so that it It follows that the EU legislator on a learning system common to all EU states, regardless of the specific characteristics of each national system.

Therefore, this concept, for the purposes of the VAT system, generally refers to “an integrated system for the transmission of knowledge and skills, which has as its objective a wide and diversified set of subjects, as well as the deepening and development of such knowledge . and skills of pupils and students, hand in hand with their specialization in terms of the various components of the system itself” (EU Court of Justice C-434/05 and C-449/17).

Then try to extrapolate the principle that for the case examined by the financial administration, it is necessary to see if the swimming lessons can be traced back to the notion of teaching or not. earlier Art. 132, directive n. 2006/112 / EC and thus Art. 10 of Presidential Decree no. 633/1972.

Here it is necessary to recall the sentence that was celebrated in the case C-373/19 (Dubrovin and Tröger case), where the court stated that “the swimming lessons given by a swimming school mainly to children and to the learning the basics and techniques of the swimming discipline, which is undoubtedly important and pursues an objective of public interest, it is in any case a specialized and ad hoc teaching which is not equivalent, in itself, to the transmission of knowledge and skills regarding a wide and diversified set of subjects, as well as their deepening and development, characterizes university school teaching”.

This ruling confirms what was already specified in the previous rulings (ie in cases about driving and sailing), so that the courses concerned Not can be considered the professional training or education servicesas they have one purely for recreational or sporting purposes – see “The notion of school or university education, according to article 132, paragraph 1, letters i) and j) of Directive 2006/112 must be interpreted in such a way that it does not include swimming lessons from a swimming school” , C -434/05 and C-449/17.

Concluding

For the Revenue Agency, the swimming lessons provided by the ASD, which are mainly aimed at children, are not exempt from VAT because, without prejudice to the possible existence of the subjective claim of the swimming school recognized by the FIN, the objective assumption for the definition and qualification of the term “school or university education”, as outlined in the jurisprudence of the CJEU.

So that the fees that the association receives – for swimming lessons – are subject to theVAT at 22%.

It follows that the office will remain stick to one’s own line, because in the previous answer to question n. 162/2020 it was clarified that the exemption regime (in this case it was flight courses) is recognized exclusively for courses aimed at a professional activity, since they have the specific characteristics to be returned to vocational training (here the reference was to the courses required to obtain the commercial and airline pilot license). Whereas if the teaching had a purely recreational or sporting purpose, i.e. considered specialist, it would be subject to VAT (in this case at the normal rate).

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