Crowdfunding legal costs for case at the EU Court of Justice about Bitcoin/VAT

[D.H.]

Update 26th of August

I have great news! One donor (who wants to remain anonymous for now) has agreed to cover all costs for the written submission that is due in a few weeks. This made it possible for me to hire Mannheimer Swartling, a very reputable Swedish law firm with the necessary experience of the EU court as well as VAT questions related to financial institutions. This means that I am not looking for more funds at this point. We will assess the financial situation again if and when there is an oral hearing coming up. At that point it might be necessary to raise more funds.

Big thanks to everyone who has contributed so far! (money, legal assistance, contacts etc. – I have received a lot of friendly e-mails and phone calls this past week).

I now have a lot of contacts that can offer insight into the situation in other EU countries. I will pass this information on to my lawyer and we will of course try to learn as much as possible about the legal status in other countries but there won't be time to talk to everyone. There is one thing that everyone in other EU countries can do to help and that is to lobby your own government! All EU countries have the oppurtunity to intervene in the case and the more countries we have on our side the better.

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Original post

As some of you may already know there is an ongoing case regarding Bitcoin and VAT exemption in Sweden and the EU. The Supreme Administrative Court (“Högsta förvaltningsdomstolen”) has now requested a preliminary ruling from the EU Court of Justice. The case, C-264/14, can be found here and has been covered quite a lot in media (Bloomberg, Law360, CoinDesk).

I got involved in this simply by asking for an advance ruling in Sweden because I wanted to start selling bitcoin on my site bitcoin.se. It has now escalated and I find myself in a situation where my case will likely decide if and how VAT should be applied to Bitcoin throughout the EU.

It took me a while to realize the significance of this case and I have to appoint a top law firm team here in Sweden that can prepare a written submission (and we’re short on time here - this has to be done in 3 weeks) as well as a potential oral hearing later on. The Swedish counsel will also cooperate with interested parties throughout Europe to get input and support from other European countries if deemed necessary. I am currently discussing with teams at three of Swedens top firms in VAT and EU-law. After asking about the costs I have received fee estimates that range from 22 000 to 38 000 EUR (approximately 56 to 96 bitcoin at the time of writing).

So here is my problem. There is no way that I can finance this personally. I don’t have enough commercial interest in the case to throw all of my savings on it, the business that we wanted to start on bitcoin.se has not been launched so there is no money there. This is why I am now reaching out to the Bitcoin community.

Disclaimer: Donating is in no way a guarantee that we will win the case but if I can’t raise the money the risks are dramatically increased that I will lose since I will have to deal with the court proceedings on my own (which one of the parties I have discussed the case with has described as “catastrophical” for Bitcoin in Europe).

If the donated money is in excess of the costs I will donate the excess funds to Bitcoin organizations in Europe. If, for some reason, none of the funds raised are used I will return all bitcoins to the sender address (so make sure that you donate from an address that you control!)

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Please send your donations to this Bitcoin address:
(no more donations necessary at this point)
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About me
My name is David Hedqvist and have been running bitcoin.se since early 2012. I am a moderator of the Scandinavian forum section at bitcointalk.org and I have also been a moderator at bitcoin.stackexchange.com since its launch.

I will post this message on bitcoin.se, on bitcointalk.org where my name is D.H. and on Reddit where my name is D_H_. If you read about the case on curia.europa.eu or in media you can confirm that the case is about David Hedqvist and bitcoin.se. Feel free to send me a PM or an e-mail to david@bitcoin.se if you have any questions.

You may also contact Dr. Thaer Sabri (thaer@flawlessmoney.com), Chief Executive of Electronic Money Association, to confirm the legitimacy of this fund raiser.

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[franky1]

general 'user' donations wil be small. i would look at coinmap/bitpay/coinbase merchants and other services listings pages to find bitcoin business in your country, and ask them to help endorse your campaign

100 businesses donating just 1 btc each is alot easier than trying to ask 10,000 users to donate 0.01 each especially when that $500 per business could potentially save that business thousands later.

[D.H.]

general 'user' donations wil be small. i would look at coinmap/bitpay/coinbase merchants and other services listings pages to find bitcoin business in your country, and ask them to help endorse your campaign

100 businesses donating just 1 btc each is alot easier than trying to ask 10,000 users to donate 0.01 each especially when that $500 per business could potentially save that business thousands later.

Yes, I think that you're right about that. Anyone who can point me to the right person to reach out to at such businesses, please send me a PM or an e-mail. I'm afraid that it'll be lost as spam if I start sending what looks like begging e-mails to info@bitpay, info@bitstamp etc.

[franky1]

general 'user' donations wil be small. i would look at coinmap/bitpay/coinbase merchants and other services listings pages to find bitcoin business in your country, and ask them to help endorse your campaign

100 businesses donating just 1 btc each is alot easier than trying to ask 10,000 users to donate 0.01 each especially when that $500 per business could potentially save that business thousands later.

Yes, I think that you're right about that. Anyone who can point me to the right person to reach out to at such businesses, please send me a PM or an e-mail. I'm afraid that it'll be lost as spam if I start sending what looks like begging e-mails to info@bitpay, info@bitstamp etc.

sending an email/posting a forum topic asking for money in the first post is a ALWAYS going to look like a money grab. so try to formulate a message that mentions the mission/campaign and the details of the court case that can be verified. add a draft of what basic result you seek from the court (EG. NO VAT and to treat bitcoin merchants as bureau de change, rather then retailers of VAT categorized products)

the thing that i find odd is that the EU is even proposing to categorize bitcoins as a VAT rateable product. yet using UK guidelines say bitcoin by its very nature is a raw invention that does not 'add value' to anything that bitcoin was created using.

EG a raw carrot is not VAT categorized product. but if it was 'prepared' and packaged which adds value to the carrot. then the prepared / packaged result is VAT categorized. so i hope your team are good at drafting an explanation that bitcoin is not a final product that has a added value.. because a bitcoin is a bitcoin is a bitoin. there is no before, there is no after. it is raw.

anyways. try to draft a post/mail that talks about the campaign, and the details, and ask them if they are interesting in endorsing the campaign, to contact you back.

simple money begs dont get people interested so dont be too eager to throw a bitcoin address in their face at first contact.

also, i do not mean to contact coinbase/bitpay for endorsments par-say. what i man is to look at their list of partners (merchants) and find ones that are based in your country.

coinbase has 35k
bitcoin has 30k
coinmap and many other places, including the market place sub forum here lists many merchants. so seek them out. you may even find that some of these businesses can offer more than just funding.

[D.H.]

sending an email/posting a forum topic asking for money in the first post is a ALWAYS going to look like a money grab. so try to formulate a message that mentions the mission/campaign and the details of the court case that can be verified. add a draft of what basic result you seek from the court (EG. NO VAT and to treat bitcoin merchants as bureau de change, rather then retailers of VAT categorized products)

Good advice, thanks.

the thing that i find odd is that the EU is even proposing to categorize bitcoins as a VAT rateable product. yet using UK guidelines say bitcoin by its very nature is a raw invention that does not 'add value' to anything that bitcoin was created using.

Actually, the EU isn't proposing anything. In Sweden there was disagreement between Skatterättsnämnden (government agency that give advance rulings in tax questions) and Skatteverket (the tax authority) on how to interpret Article 135(1) in the EU directive on VAT. They were in agreement that exchanging Bitcoin <-> traditional currency was not "consumtion" so they didn't suggest to add VAT to the bitcoins but Skatteverket believes that it should be added to commission taken by e.g. exchanges.

So, the EU court will now decide exactly how to interpret the directive regarding Bitcoin.

[franky1]

So, the EU court will now decide exactly how to interpret the directive regarding Bitcoin.

bitcoin is "out of scope" of VAT

thats the simple answer, and i hope your team can acutely explain why, the UK tax office HMRC listened to reason and took on board details given to them. so if the EU system is similar where they have certain 'test' scenarios that help them to determine bitcoins scope, then they should come to the same results. so i hope your team knows what 'test' scenarios the EU tax department use on new inventions to determine if its VAT categorized or remains 'out of scope'.

goodluck, and do not be afraid to contact the tax offices and ask them millions of questions. they are not that bad

[Hermel]

@D.H. can you clarify the following question:

Assume your business sells 2 BTC to me for 1000€ and that the VAT rate is 20%. Furthermore, you charge a transaction fee of 10€. Do I need to actually pay

(a) 1010€, consisting of 1000€ + 10€ fee
(b) 1012€, consisting of 1000€ + 10€ fee + 2€ VAT on fee
(c) 1212€, consisting of 1000€ + 10€ fee + 202€ VAT on everything

What most seem to fear is case (c), which would indeed be catastrophic. I don't understand the legalese of the English question, but the German translation of the question to the court only asks about case (b).

So is the question only about whether (a) or (b) applies?

Edit: after reading it again, it seems even more subtle: the German version asks whether case (c) applies in cases where the exchange adds an implicit fee to the exchange rate. I.e. the real exchange rate is 1:500, but the exchange is giving you 1:505, thereby embedding the fee in the exchange rate. Of course, there is a chance that the court will go further and also hint at the answers to other questions. But the question itself seems to be very narrow and specific.

[nsfsj]

I'm surprised that not more Europeans are concerned. It is an important issue and one that can be easily misinterpreted if not understood properly.
If you are a European; at least up vote the reddit post: http://www.reddit.com/r/Bitcoin/comments/2e7f6k/i_need_your_help_funding_legal_costs_in_a_case_at/

[D.H.]

So is the question only about whether (a) or (b) applies?

Yes, that was the disagreement in Sweden between Skatterättsnämnden and Skatteverket, whether VAT should be applied to the commission or not. I guess that question (c) could come up in some of the arguments though if other EU countries choose to intervene in the proceedings.

[C. Bergmann]

So ... do I understand correct: it's not about VAT on the Bitcoin-Purchase (1000€ + 200€ VAT) but about VAT on the fee (10€ + 2€)? If this is it, it seems not a subjects of legal discussion that everyone who earns money with a service has to pay VAT on his income.

Edit: In germany it seems we have a discussion about (c), if you buy/sell bitcoins as a business. That is very problematic.

[murraypaul]

So ... do I understand correct: it's not about VAT on the Bitcoin-Purchase (1000€ + 200€ VAT) but about VAT on the fee (10€ + 2€)? If this is it, it seems not a subjects of legal discussion that everyone who earns money with a service has to pay VAT on his income.

Certain financial services are exempt from VAT. The question is whether buying and selling Bitcoins falls within those exemptions.

http://curia.europa.eu/juris/document/document.jsf;jsessionid=9ea7d2dc30d68acbbd94962a46ba848f8c05795c02d6.e34KaxiLc3qMb40Rch0SaxuOaxj0?text=&docid=154888&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=110847

Request for a preliminary ruling from the Högsta förvaltningsdomstolen (Sweden) lodged on 2 June 2014 — Skatteverket v David Hedqvist

(Case C-264/14)

Language of the case: Swedish

Referring court

Högsta förvaltningsdomstolen

Parties to the main proceedings

Applicant: Skatteverket

Defendant: David Hedqvist

Questions referred

Is Article 2(1) of the VAT Directive 1 to be interpreted as meaning that transactions in the form of what has been designated as the exchange of virtual currency for traditional currency and vice versa, which is effected for consideration added by the supplier when the exchange rates are determined, constitute the supply of a service effected for consideration?

If the answer to the first question is in the affirmative, is Article 135(1) to be interpreted as meaning that the abovementioned exchange transactions are tax exempt?

http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32006L0112&from=EN

Article 2
1.   The following transactions shall be subject to VAT:
(a)
the supply of goods for consideration within the territory of a Member State by a taxable person acting as such;
(b)
the intra-Community acquisition of goods for consideration within the territory of a Member State by:
(i)
a taxable person acting as such, or a non-taxable legal person, where the vendor is a taxable person acting as such who is not eligible for the exemption for small enterprises provided for in Articles 282 to 292 and who is not covered by Articles 33 or 36;
(ii)
in the case of new means of transport, a taxable person, or a non-taxable legal person, whose other acquisitions are not subject to VAT pursuant to Article 3(1), or any other non-taxable person;
(iii)
in the case of products subject to excise duty, where the excise duty on the intra-Community acquisition is chargeable, pursuant to Directive 92/12/EEC, within the territory of the Member State, a taxable person, or a non-taxable legal person, whose other acquisitions are not subject to VAT pursuant to Article 3(1);
(c)
the supply of services for consideration within the territory of a Member State by a taxable person acting as such;
(d)
the importation of goods.

Article 135
1.   Member States shall exempt the following transactions:
(a)
insurance and reinsurance transactions, including related services performed by insurance brokers and insurance agents;
(b)
the granting and the negotiation of credit and the management of credit by the person granting it;
(c)
the negotiation of or any dealings in credit guarantees or any other security for money and the management of credit guarantees by the person who is granting the credit;
(d)
transactions, including negotiation, concerning deposit and current accounts, payments, transfers, debts, cheques and other negotiable instruments, but excluding debt collection;
(e)
transactions, including negotiation, concerning currency, bank notes and coins used as legal tender, with the exception of collectors' items, that is to say, gold, silver or other metal coins or bank notes which are not normally used as legal tender or coins of numismatic interest;
(f)
transactions, including negotiation but not management or safekeeping, in shares, interests in companies or associations, debentures and other securities, but excluding documents establishing title to goods, and the rights or securities referred to in Article 15(2);
(g)
the management of special investment funds as defined by Member States;
(h)
the supply at face value of postage stamps valid for use for postal services within their respective territory, fiscal stamps and other similar stamps;
(i)
betting, lotteries and other forms of gambling, subject to the conditions and limitations laid down by each Member State;
(j)
the supply of a building or parts thereof, and of the land on which it stands, other than the supply referred to in point (a) of Article 12(1);
(k)
the supply of land which has not been built on other than the supply of building land as referred to in point (b) of Article 12(1);
(l)
the leasing or letting of immovable property.

[Hermel]

So ... do I understand correct: it's not about VAT on the Bitcoin-Purchase (1000€ + 200€ VAT) but about VAT on the fee (10€ + 2€)? If this is it, it seems not a subjects of legal discussion that everyone who earns money with a service has to pay VAT on his income.

Yes, it all seems to be only about VAT on the fee, and not the whole transaction, which makes everything much less dramatic.

Yes, that was the disagreement in Sweden between Skatterättsnämnden and Skatteverket, whether VAT should be applied to the commission or not.

@D.H: Thanks for the clarification! Unfortunately, this is often not reported correctly.

[Hermel]

So, the EU court will now decide exactly how to interpret the directive regarding Bitcoin.

bitcoin is "out of scope" of VAT

No it is not.
Nothing is "out of scope" of VAT. Some things are exempt from VAT if and only if they are on the list of "things that are exempt from VAT".
Bitcoin is not on that list, so by default, VAT applies at the standard rate.

Actually, things can be out of scope regarding VAT. VAT is charged on the delivery of goods and services. So if transferring Bitcoins is neither a delivery of a good nor a service, Bitcoin is out of scope.

[franky1]

So, the EU court will now decide exactly how to interpret the directive regarding Bitcoin.

bitcoin is "out of scope" of VAT

No it is not.
Nothing is "out of scope" of VAT. Some things are exempt from VAT if and only if they are on the list of "things that are exempt from VAT".

Bitcoin is not on that list, so by default, VAT applies at the standard rate.

kid you have no clue about VAT at all, next time try phoning a tax office, or at least googling definitions of things you wish to rebuttle.

http://www.hmrc.gov.uk/vat/forms-rates/rates/rates.htm#1

 If you're registered for VAT, you have to charge VAT at the standard rate on all goods and services you supply, unless they fall into one of these categories:

    zero-rated
    reduced-rated
    exempt from VAT
    outside the scope of VAT

http://www.hmrc.gov.uk/vat/forms-rates/rates/rates.htm#5

When VAT mustn't be charged

VAT is not charged (so it can't be reclaimed) on goods and services that are:

    exempt from VAT
    outside the scope of VAT

VAT must also not be charged by a business that isn't registered for VAT.

and as for your post about services. services are not automatically classed as VAT rateable, you are completely wrong about that. the actual classifications is when a service "adds value" to a good

EG
a bank handing you money is a service, but it does not add valueto money simply because a person hands you money at a bank teller desk, rather than an ATM or vice versa..

however if someone business had a raw food item, and then prepared it, cooked it and served it on a plate with a knife and fork, this would deem the food to have more value then it would have had in its raw state. thus prepared food services would be VAT rateable.

have a nice day googling your rebuttles before posting next time

[Hermel]

Actually, things can be out of scope regarding VAT. VAT is charged on the delivery of goods and services. So if transferring Bitcoins is neither a delivery of a good nor a service, Bitcoin is out of scope.

Yes and "services" if basically defined by "everything that can be billed and does not end with the delivery of goods".

It is more subtle than that. The VAT directive defines "‘Supply of services’ shall mean any transaction which does not constitute a supply of goods". However, "transaction" is earlier defined as supply of a good or service (article 2). Thus, all the directive says in the end is that "transactions" = "supply of goods or services", without defining more closely what a service is.

It boils down to the question what the service is, that a Bitcoin exchange provides. The reasonable interpretation is that the service an exchange provides just consists of the matching of buyers and sellers. Thus, VAT should only apply to that service, and not the exchanged amounts. Similarily, ebay only charges VAT on its fees, and not the value of the traded goods.

Now, what makes this all so confusing, is that there are exemptions for financial services such as running an exchange, which raises the seperate question of whether VAT applies to the fees or not.

[franky1]

It is more subtle than that. The VAT directive defines "‘Supply of services’ shall mean any transaction which does not constitute a supply of goods". However, "transaction" is earlier defined as supply of a good or service (article 2). Thus, all the directive says in the end is that "transactions" = "supply of goods or services", without defining more closely what a service is.

It boils down to the question what the service is, that a Bitcoin exchange provides. The reasonable interpretation is that the service an exchange provides just consists of the matching of buyers and sellers. Thus, VAT should only apply to that service, and not the exchanged amounts. Similarily, ebay only charges VAT on its fees, and not the value of the traded goods.

Now, what makes this all so confusing, is that there are exemptions for financial services such as running an exchange, which raises the seperate question of whether VAT applies to the fees or not.

the ebay fee's are VAT rateable because the service ebay offers is not simply matching a buyer and seller, ebay offer the service as an "advertisment" concept. that is the part that "add value" to the transaction.

simply matching buyer-seller, or funds movement adds no value to the transaction, thus exchanges would not be VAT rateable

[murraypaul]

and as for your post about services. services are not automatically classed as VAT rateable, you are completely wrong about that. the actual classifications is when a service "adds value" to a good

I quoted the actual directive above.

(c)
the supply of services for consideration within the territory of a Member State by a taxable person acting as such;

EG
a bank handing you money is a service, but it does not add valueto money simply because a person hands you money at a bank teller desk, rather than an ATM or vice versa..

The bank does not charge you to hand you money, therefore the service is not covered by the VAT directive.

[tavitavi]

It's a waste of time for laymen in this thread to try to sort out the directive and the outcome of this case, it doesn't work like that. I don't know how familiar you are with the European Union legal system, but this is very common practice. Directives are written very vaguely on purpose and it's then up to the European Court of Justice to interpret the exact workings and meaning when a specific case comes up. In practice they are not only interpreting what everybody can already read in the directive, but they are de facto creating the rules when they have to and they can be extremely creative in their interpretation. Like I said, this is very common and a very large number of regulations in the union are the results of rulings in the court rather than actually put down in words in some directive or legislation.
Also I'm not sure if everybody understands the great implications this will have with immediate effect in all 28 EU nations regardless of their national laws. It is of extreme importance that the lawyers get the funding to fully understand the protocol and work out their arguments in just three weeks so please donate money to this cause because the outcome could seriously cripple the bitcoin development in the EU and thus the entire ecosystem.

D.H: I just donated 0.25 BTC to your address and I truly hope the donations will start coming in at a faster rate than it is doing now. Have you reached out to Safello? They have extreme ambitions in the entire union and a negative ruling would hurt their business model significantly. Seeing as they also speak Swedish they could probably help you out a lot. I suggest you try to reach their CEO as soon as possible.

[Hermel]

It's a waste of time for laymen in this thread to try to sort out the directive and the outcome of this case, it doesn't work like that.

And it can also be fatal to blindly trust a professional. If it is important, you cannot get around understanding it yourself.

[tavitavi]

It's a waste of time for laymen in this thread to try to sort out the directive and the outcome of this case, it doesn't work like that.

And it can also be fatal to blindly trust a professional. If it is important, you cannot get around understanding it yourself.

My point is that the court will make their decision based not primarily on the actual wording of the directive, but on other things such as argumentation, the EU's basic values​​, the possible implications of the specific and other cases, political agendas, symbolic values ​​and arbitrary discretion. In order to even get a point across you need first and foremost a law degree and secondly immense experience of EUCOJ litigation.
Of course, the discussion is interesting, but I would rather see people focusing on where they can actually make a difference: funding. DH has received just over 1.6 BTC and he will probably need closer to 100 BTC.