VAT at 22% for the swimming lessons of an ASD

The Revenue Agency has published the response to ruling no. 393 of 27 July 2022, on the subject of treatment applicable to swimming courses given by an amateur sports association.

Article 132 (1) of Directive no. 2006/112 / EC of 28 November 2006, lists among the operations that Member States can exempt from VAT, in letter i) the education of children or youth, school or university teaching, training or retraining professional, as well as the provision of services and the supply of goods strictly connected with them, carried out by public law bodies with the same purpose or by other bodies recognized by the Member State concerned as having similar purposes.

The subsequent letter j) of the same article provides that lessons given by teachers on a personal basis and relating to school and university teaching are also exempt from VAT.

By virtue of the aforementioned article 132 of the aforementioned directive no. 112/2006 / EC, Member States may exempt from VAT the educational operations of children and youth and school or university teaching, including training or professional retraining, provided that they are carried out by bodies governed by public law having the same purpose or by other organizations recognized by the Member State concerned as having similar purposes.

Internally, article 10, number 20), of Presidential Decree 26 October 1972, n. 633, provides for the exemption from VAT for educational services for children and young people and for educational services of all kinds, including for training, updating, retraining and professional reconversion, provided by institutes or schools recognized by public administrations and by third sector entities of a non-commercial nature.

The aforementioned provision, therefore, in line with the provisions of the aforementioned article 132 of the directive, makes the application of the VAT exemption subject to the occurrence of two conditions, one of an objective nature and the other subjective, establishing that the services to which refers to:

– they must be of an educational or didactic nature of childhood and youth, including training, updating, retraining and professional reconversion;

– they must be made by institutes or schools recognized by public administrations.

With reference to the subjective assumption, as clarified by the practice, the terminology contained in the provision “institutes or schools” must be attributed a “merely descriptive value”, in relation to the subjects who normally preside over these activities, and not the meaning of a mandatory indication of subjects admitted to benefit from the exemption regime.

Furthermore, the exemption must be considered effective even if the recognition of institutes or schools is carried out for reasons of specific competence, by a State administration other than the scholastic one and the recognition must concern the educational, didactic course that the body intends to accomplish.

Furthermore, according to the Court of Justice, “the notion of school or university teaching” includes activities that are distinguished both by their specific nature and by the context in which they are carried out. It follows that, by means of this concept, the EU legislature intended to refer to a specific type of education system, which is common to all member states, regardless of the specific characteristics of each national system.

Consequently, the notion of school or university teaching for the purposes of the VAT system refers, in general, to an integrated system for the transmission of knowledge and skills having as its object a wide and diversified set of subjects, as well as to the deepening and development of such knowledge and skills by pupils and students, hand in hand with their specialization within the various constituent levels of the system itself.

With regard to driving lessons given by a driving school, the same EU judges have ruled, among other things, that the teaching of car driving given by a driving school, despite having as its object various practical and theoretical knowledge, remains in any case a specialized teaching which is not, in itself, equivalent to the transmission of knowledge and skills relating to a wide and diversified set of subjects, as well as to their deepening and development, which characterize school or university teaching.

With regard to the notion of vocational training, Article 44 of the EU Council Implementing Regulation 282/2011 of 15 March 2011, containing provisions for the application of the aforementioned Directive 2006/112 / EC, provides that professional training or retraining services include didactic services directly related to a commercial or professional activity, as well as didactic services for professional training and updating.

In this regard, the Revenue Agency had already underlined, with its reply no. 162 of 1 June 2020, which, with regard to the flight lessons given by a flight school for pilots in the civil and commercial field, as well as the teaching of car driving, the flight courses represent, in general, a teaching of specialist type, subject to VAT, from whose scope it is possible to exclude, in order to subject them to the exemption regime, only the courses aimed at obtaining the commercial pilot license and that of airline pilot as they are aimed at carrying out the professional activity of pilot.

These courses essentially possess in themselves the characteristics to be brought back into the field of professional training (exempt from VAT) because they are aimed at transmitting knowledge used exclusively for the purposes of the professional performance of the pilot activity.

Otherwise, teaching aimed at obtaining a private pilot license, having a purely recreational or sporting purpose, must be considered of a specialist type, as such taxable VAT at the ordinary rate.

With reference to swimming lessons, from an objective point of view, in accordance with the indications of the EU Court of Justice, it is necessary to ascertain whether or not the teaching of swimming can be traced back to the notion of “school or university teaching”, contained in the aforementioned provision referred to in Article 132 of the aforementioned Directive 2006/112 / EC and, consequently, the aforementioned exemption provision referred to in Article 10 of Presidential Decree 633 of 1972 can be considered applicable.

In this regard, the Court of Justice, in the sentence C-373/19, issued in 2021, relating precisely to this specific topic, ruled, among other things, that the teaching of swimming, given by a swimming school in the comparisons mainly with children and aimed at learning the basics and techniques of the swimming discipline, presents an undoubted importance and pursues an objective of public interest, it still constitutes a specialized teaching and given ad hoc, which is not equivalent, in itself itself, to the transmission of knowledge and skills relating to a wide and diversified set of subjects, as well as to their deepening and development, characterizing school or university teaching.

In essence, the ruling reaffirms what has already been specified regarding the teaching of car driving and sailing, namely that the term “school or university teaching” referred to in the aforementioned article 132 of the aforementioned directive, for the purposes of the VAT system, must refer to a integrated system of knowledge and skills having as its object a wide and diversified set of subjects, as well as the deepening and development of such knowledge and skills by pupils and students and, consequently, the notion of school or university teaching, pursuant to Article 132 (1) (i) and (j) of Directive 2006/112, it must be interpreted as meaning that it does not include the teaching of swimming given by a swimming school.

Moreover, the aforementioned courses cannot be considered as professional training or retraining services, in the sense highlighted above, rather they have a purely recreational or sporting purpose.

It follows that the swimming courses given by the ASD, mainly to children, cannot be traced back to the VAT exemption, since, without prejudice to the possible existence of the subjective requirement of a swimming school recognized by the Federation of competence, is lacking in the objective assumption that concerns the definition and qualification of the notion of “school or university teaching”, as emerges from the jurisprudence of the EU Court of Justice.

It follows that, to the fees received for the swimming courses in question, VAT is applied in the ordinary measure of 22 per cent.

By the editorial staff

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VAT at 22% for the swimming lessons of an ASD