The Danish Tax Agency has published the answer to order no. 221 of 27 April 2022 on dispensation for services of nursing homes and the like.
Pursuant to section 10, subsection 21) in the VAT Executive Order, services from orphanages, orphanages, kindergartens, homes for the elderly and the like are exempt from the tax, including administration of food, clothing and medicine, healing services and other related services.
As stated in various practice documents, the exemption in question is objective in nature, being relevant only to its use, the traceability of the services provided among those listed therein and not also the legal nature of the provider.
In particular with decision no. 39 / E, the Danish Tax Agency could specify that this scheme:
has an objective value, in the sense that the services specified therein fall within that category exempt of VAT regardless of the legal nature of the person making them;
– the services provided by a third party in a nursing home are objectively excluded, even if clearly specified, provided that they fully and substantially characterize the overall management of the RSA, the ownership of which remains with the “Contracting Party”, which is: limited to a single Control activity and address to guarantee quality and collective interest “;
other services provided separately by the senior management of nursing home Nursing and rehabilitation services will be invoiced according to their own scheme and therefore under the VAT exemption scheme if they fall under one of the cases mentioned in section 10 of the VAT Executive Order.
The resolution of 25. November 2005, n. 164 / E deals with the VAT scheme applicable to the services provided by a Nursing homes for the disabled (RSD), who: a) hosts severely disabled persons who are temporarily or permanently unable to remain in their family unit; b) it is a “protected structure” for the night, which guarantees health and rehabilitation services; c) is organized to support its guests psychologically and to turn them into social activities as well.
Since the same offers services similar to them nursing homes for the elderly, on that occasion the VAT exemption provided for in § 10, para. 21 of the VAT Decree also to the services that an RSD provides to its guests.
When, in fact, the tax administration was called upon to comment on matters other than nursing homes for the elderlytaking into account the term “and similar” contained in the law, clarifying that the list contained shall not be considered mandatory and that the services provided by “similar” bodies; is exempt when accommodation is secured with them, possibly combined with others performance considered in fact as ancillary to the main service, for persons who, because of their status, need protection, assistance and care.
The answers n. 221 of 2019 and n. 240 of 2020 also confirm the principle of the so-called global management – applies to the aforementioned “assimilation” also to RSDs – according to which in order to apply the VAT exemption in question, it is necessary that the service offered consists of: global management of the nursing home (rectius, RSD).
In this regard, the European Court of Justice noted in its judgment of 21 January 2016 (Case C-335/14) that nursing homes, like homes for the elderly, provide people with housing along with various support services and care.
On the one hand, it is necessary to take the same consideration for the treatment VAT the benefit that consists of making housing available, whether such housing is provided by a retirement home or by a residential center for the elderly. To the extent that the support and care services that housing centers for the elderly are required to provide under the relevant national legislation are similar to those that old-age homes are required to provide under this legislation, it is necessary to reserve the same treatment for them. VAT.
The European Court of Justice has therefore ruled that Article 13A (1) of the Sixth Directive Article 1 (1) (g) must be interpreted as meaning that among the services provided by a housing center for the elderlywhose social character is to be assessed by the referring court, those which consist in providing adequate housing Elderly can benefit from the dispensation.
The other services offered by this housing center for the elderly can also benefit from this exemption, provided that in particular the services housing centers for the elderly they are obliged to offer, in accordance with the relevant national legislation, are targeted and guarantee support and care Elderly and corresponds to those which old age homes are also required to offer under national law.
Therefore, they can be invoiced VAT exemption fees for accommodation services, for services corresponding to support and personal care as well as for other assistance services for the latter, provided to guests with mental disabilities by the non-profit social enterprise whose activity consists in providing social assistance outside the home for people with psychiatric disorders.
By the editors