A Dissection of the Direct Link Test : An Analysis of the Enigmatic Concept of a 'Supply for Consideration'
Abstract: How does one know whether a service is supplied against payment? While the answer to that question appears to be self-evident, it is, in fact, the sole reason for a host of court procedures across the world of VAT. Indeed, the underlying concept of a supply for consideration has eluded and continues to elude courts and practitioners. This is in part due to the wide range of transactions that are arguably such that they cannot be categorised as a supply for consideration (i.e., a supply against payment). It is, e.g., not obvious how to treat the transaction happening when a by-passer gives a few coins to a street musician, considering that it is debatable whether the coins constitute payment for a music service or a gift given out of sympathy. As an attempt to elucidate the concept of a supply for consideration, the Court of Justice of the European Union (CJEU) has developed the so called direct link test, consisting of four criteria. The test is applied in cases where the nexus between a supply and a consideration is indefinite or called into doubt. Given that the CJEU is the supreme interpreter of EU law, the direct link test has consequently become a standardised test in all 28 Member States of the EU. In other jurisdictions, such as Australia and New Zealand, there stands no equally established test to resolve the question of a nexus. More so, the courts of these jurisdictions do not necessarily adhere to the same notions as the CJEU. Against this background, the criteria of the direct link test have been analysed as well as compared to the notions prevailing in other jurisdictions. Following the comparative studies, it stands evident that there are, in some instances, radically different understandings of what kind of transactions that constitute a supply for consideration. These differences exist between courts of different jurisdictions as well as courts of the same jurisdiction. Certainly, there will always be disagreements in respect of legal queries; however, by virtue of the comparative studies, divergences of a more conceptual nature have been unearthed. In turn, these conceptual divergences demonstrate the existence of fundamentally different perceptions of the concept of a supply for consideration within the world of VAT. In light of the analysis, the author has concluded that the direct link test is appropriate for the purpose it is meant to serve. That said, the actual application of the test leaves room for improvement, which may to some extent be sought in the rules and notions prevailing in other jurisdictions and in the comments and critiques put forward by scholars.
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