On 19 January 2019, the Luxembourg VAT authorities published Circular 790(“Circular”) to clarify Article 28 paragraph 3 of the Law of 12 February 1979 (“VAT Law”) on transfer pricing.
According to the Circular, the fair market value defined in Article 32 of the VAT Law will be substituted for the fee actually charged for the good or the service supplied in the following three cases:
the fee charged is lower than the fair market value and the supplier does not have any full VAT deduction right while the supply itself is VAT exempt; or
the fee charged is higher than the fair market value and the supplier does not have any full VAT deduction right; or
the fee charged is lower than the fair market value and the recipient does not have any full VAT deduction right.
It is pointed out in the Circular that the above rules are only relevant for transactions where the general income-based pro rata deduction method applies. For any other cases, it reiterates that the direct allocation method must be preferred when determining the proportion of input VAT deductible as previously set out in Circular 765 dated 15 May 2013.
