VAT at 22% for swimming lessons from an ASD

The Revenue Agency has submitted the answer to the judgment no. 393 of July 27, 2022, on the subject of treatment, applicable to swimming lessons of an amateur sports association.

Article 132 (1) of Directive no. 2006/112 / EC of November 28, 2006, lists among the operations that member states can exempt from VAT, in the letter i) the education of children or youth, school or university teaching, training or retraining of professionals, as well as the provision of services and the supply of goods strictly related to them, carried out by bodies governed by public law with the same purpose or by other bodies recognized by the Member State concerned as having similar purposes.

The subsequent letter j) of the same article provides that the lessons of teachers on a personal basis and regarding school and university teaching are also exempt from VAT.

By the aforementioned article 132 of the aforementioned directive no. 112/2006 / EC, Member States may exempt from VAT the educational activities of children and adolescents and school or university teachers, including education or professional further training, provided that they are carried out by public bodies with the same purpose or by others. Organizations recognized by the Member State concerned as having similar purposes.

Internal, Article 10, Number 20), of the Presidential Decree of October 26, 1972, n. 633, provides for the exemption from VAT for educational services for children and young people and for educational services of all kinds, including for training, updating, retraining and professional reconversion, provided by institutions or schools recognized by public administrations and third sector entities of a non- commercial nature.

The above provision therefore makes, in accordance with the provisions of the aforementioned Article 132 of the Directive, the application of the VAT exemption subject to the occurrence of two conditions, one of an objective nature and the other subjective, which establish that the Services for which refers to:

– they must be of a pedagogical or didactic nature of childhood and youth, including education, updating, training and professional reconversion;

– they must be done by institutions or schools recognized by public administrations.

With regard to the subjective assumption, as clarified by practice, the terminology in the provision “institutes or schools” must be attributed a “only descriptive value” in relation to the subjects that normally preside over these activities, and not the meaning. of a mandatory indication of subjects who are allowed to benefit from the exemption regime.

In addition, the exemption must be considered effective, even if the recognition of institutions or schools for reasons of specific competence is carried out by a state administration other than the educational one and the recognition must concern the educational, didactic course that the body intends to carry out. .

Furthermore, according to the court, “the term school or university teaching” includes activities that differ both by their specific nature and by the context in which they are carried out. It follows that with this concept the EU legislature intended to refer to a specific type of education system that is common to all member states, regardless of the specific characteristics of each national system.

Therefore, the notion of school or university education for the purposes of the VAT system generally refers to an integrated system for the transmission of knowledge and skills with a wide and diversified set of subjects, as well as to deepening. and development of such knowledge and skills of pupils and students, hand in hand with their specialization within the various constituent levels of the system itself.

Regarding the driving lessons of a driving school, the same EU judges stated, among other things, that the driving lessons of a driving school, despite different practical and theoretical knowledge, are in any case a specialized education, which in itself is not equivalent to the transmission of knowledge and skills related to a wide and diversified range of subjects, as well as their deepening and development, which characterize school or university teaching.

Regarding the notion of vocational training, Article 44 of the EU Council Implementing Regulation 282/2011 of March 15, 2011, with provisions for the application of the aforementioned Directive 2006/112 / EC, provides that vocational training or the reformation services include didactic services. directly related to a commercial or professional activity, as well as didactic services for professional training and updating.

In this connection, the Revenue Agency with its response no. 162 of June 1, 2020, which, regarding the flight lessons of a flight school for pilots in the civil and commercial field, as well as the learning of driving, the flight lessons generally represent a learning of a specialized type. , are subject to VAT, from the scope of which it is possible, in order to subject them to the exemption regime, to exclude only the courses aimed at obtaining the commercial pilot license and that of the airline pilot, since they are aimed at the execution of the professional activity of the pilot.

These courses essentially possess in themselves the characteristics that are brought back to the vocational training area (exempt from VAT), as they aim to transmit knowledge that is used exclusively for the professional performance of the pilot activity.

Otherwise, the training aimed at obtaining a private pilot’s license must have a purely recreational or sporting purpose, be considered specialist, as well as taxable VAT at the ordinary rate.

In relation to swimming lessons, it must be determined from an objective point of view according to the indications of the EU Court of Justice, whether to return swimming lessons to the notion of “school or university education”, contained in the aforementioned provision, which is in Article 132 of the referred to as Directive 2006/112/EC, and thus the above-mentioned exception provision referred to in Article 10 of Presidential Decree 633 of 1972 can be considered applicable.

In this sense, the Court of Justice in sentence C-373/19, which was issued in 2021, precisely on this specific topic, among other things, stated that the swimming lessons given by a swimming school in the comparisons mainly. with children and aims to teach the fundamentals and techniques of the swimming discipline, is of dubious importance and pursues an objective of public interest, it is still a specialized and ad hoc teaching, which in itself is not equivalent to the Transmission of knowledge and skills regarding a wide and diversified set of subjects, as well as their deepening and development, which characterize school or university teaching.

In essence, the judgment confirms once again what has already been specified regarding the teaching of driving and sailing, namely that the term “school or university education” referred to in the aforementioned Article 132 of the aforementioned directive, for purposes of the VAT system, must refer to an integrated system of knowledge and skills, which has as its objective a wide and diversified series of subjects, as well as the deepening and development of such knowledge and skills of pupils and students, and thus the Notion of school or university education, according to article 132 (1) (i) and (j) Directive 2006/112, it must be interpreted in such a way that it does not include the teaching of swimming by a swimming school.

In addition, the above courses cannot be considered as vocational training or further education services, in the sense highlighted above, rather they have a purely recreational or sporting purpose.

The point is that the swimming lessons given by the ASD, mainly to children, cannot be attributed to the VAT exemption, because, without prejudice to the possible existence of the subjective claim of a swimming school recognized by the competent federation, and the objective assumption concerning the definition and qualification of the term “school or university education”, as it comes from the jurisprudence of the EU Court of Justice.

It means that VAT is applied at the ordinary rate of 22 percent to the fees paid for the swimming lessons in question.

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