Posted: 27th March 2018 | Written by: Chris Allix
It is well known within the yachting industry that the EU Commission has issued a notice to Malta and Cyprus that they intend to commence infraction proceedings against them in relation to their leasing schemes.
We understand that Malta will defend the scheme with a robust defence, so what is the basis of the EU's attack? The EU Commissioners contend that the lease schemes result in unfair tax competition and do not meet the tests set out in the ECJ ruling (Mercedes Case) meaning that the structures are actually lease purchases. Under another ECJ ruling (Eon Capital), lease purchase schemes are a supply of goods and therefore not entitled to the "use and enjoyment" relief, therefore only operational leases are entitled to the relief as a supply of services.
Cottonera Marina in Malta where the EU Commission is coming down hard on leasing schemes.
The two tests set out in the Mercedes Case are as follows:
1: Is there an economical expectancy that the lessee will acquire the goods at the end of the lease? If there is, then the structure is a lease purchase. Malta contend that because there is no option for the lessee to acquire the yacht, the scheme is a supply of services. However, the arguments against this are as follows:
That the whole purpose of the scheme is to pay VAT under the reduced rate and acquire a VAT paid yacht at the end of the lease period
Whilst there is no option to acquire, the client owns both the lessee and lessor companies and therefore should not require an option
There is no economic facility for the lessee to structure a new lease on completion of the first lease period
During the many years the leasing scheme has been in place, no yacht has ever not been acquired by the lessee
2: If the total amount paid by the lessee during the lease period is equal to or more than the acquisition price paid by the lessor then the structure is a lease purchase scheme. In the leasing scheme, the lease payments are based on the acquisition price, usually payable over one year in four equal payments, plus an additional residual payment of one percent.
The Rental Solution developed by Dominion Marine is different from leasing and is based on Isle of Man Yacht Leasing which started trading back in 1996 and still has several superyachts in the structure today. During this time, no yacht has had any issues with Customs despite many inspections in multiple EU jurisdictions over the years. The concept was moved to Monaco in 2013 where we now have many yachts, all ranging from 24m up to 85m, and most have undergone Customs controls but all have come through without issue.
Stunning scenery in Kalavassos, Cyprus, where Dominion Marine has established a Rental Solution for superyachts.
Subsequently, we have recently established a second Rental Solution in Cyprus, developed in conjunction with Ernst & Young. In both Cyprus and Monaco, we have the full support of the local Government and all clients must be pre-approved by the authorities before commencing the Rental Solution.
The reasons why the Rental Solutions meet the tests laid out in the Mercedes Case, and are clearly an operational lease, are as follows:
There is no expectancy that the renter will acquire the yacht at the end of the rental period
At the end of the rental period, it is expected that the client will enter in to a new rental agreement
If the yacht is acquired at any time during the rental period, then the VAT will be payable at the full rate in the jurisdiction in which the yacht is moored at the time of acquisition
The total rent paid during the rental period is only a fraction of the acquisition price
We believe that, until the current uncertainty surrounding the Cyprus & Malta leasing schemes is fully resolved, and we as a business also operating out of Malta certainly hope so, the Rental Solution in either Monaco or Cyprus is the only socially acceptable VAT solution on the market and the only alternative to paying VAT in full on the acquisition of a superyacht.
For further information on our Cyprus & Monaco Rental Solutions, including our VAT comparison chart, please do not hesitate to contact us.
Photo credits: Thumbnail, Chris Allix, Dominion Marine; Malta Cottonera Marina, Frank Vincentz, Wikimedia Commons; Cyprus, Kalavassos, Pixabay.