May the asset management of the employer’s pension funds be VAT-exempt?
C 639/22–C 644/22. – Stichting BPL Pensioen | Based on the judgement given by the ECJ on the 5th of September, it may not be excluded that the asset management activity of the employer’s pension funds qualifies as a VAT-exempt portfolio management.
In the background case, employer’s pension funds, established in the Netherlands, purchased portfolio management services from foreign companies and, on the basis of the general place of supply rule on cross-border B2B services, they treated the said services as falling under the Dutch law and applied VAT-exemption on them. The Dutch tax authority did not accept this treatment saying that the above asset management services are subject to Dutch VAT.
The subject matter of the case was to assess whether the asset management of an employer’s pension fund falls within the category of the ‘management of special investment funds’ which is VAT-exempt under Article 135(1)(g) of the VAT Directive. The European Cour of Justice took the view that the employer’s pension funds may also benefit from the exemption if the risk born by the members of that pension fund is comparable to that of the holders of units in a collective investment undertaking. This criterion is satisfied if the performance of the investments made by the pension fund have a significant impact, positively or negatively, on the amount of the pension entitlements and retirement benefits. The occupational income and the years of employment may only have secondary importance without these factors resulting in lower level of risks in comparison with those born by the investors of a collective investment undertaking.
The court held that the fact that the risk is borne individually or collectively, in the event of, inter alia, bankruptcy, or that an employer acted as a guarantor during a certain period of time for the targeted pension accrual, are relevant factors (and comparable with the conditions of a collective investment vehicle), without being decisive per se. According to the judgement, for the purposes of the VAT-exemption, the investment risks related to the employer’s investment funds are not only comparable with those of the members of collective investment undertakings defined by 2009/65/EC Directive on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS Directive) but also with the risks born by the members of any other collective investment funds defined as such under the national law.
