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Global Trustee and Fiduciary Services News and Views
| Issue 48 | 2017
39
If the director of the VAT Authority rejects the
claim or if he or she does not answer within the
six months following the filing of the claim, the
Manager may lodge an appeal in front of the
Luxembourg civil court (
Tribunal d’arrondissement
de Luxembourg, siégeant en matière civile
) subject
to specific formal requirements. This appeal must
be introduced within three months following the
explicit decision of rejection issued by the director
of the VAT Authority.
Case law related to guarantee call notices for
the payment of direct taxes demonstrates that
it is generally difficult for Managers to escape
their liability. The tax authority and the courts
generally consider that Managers shall have
the required competency to deal with the
tax obligations of the company. The lack of
remuneration, the lack of competency or the
lack of involvement do not exempt a Manager
from his or her liability. As already highlighted,
even in case of delegation of tasks, the Manager
remains liable as he or she shall ensure an
uninterrupted monitoring of the performance
of his or her duties by the service provider.
Points of attention and recommendations
This new liability impacts Managers during
their mandates, of course, but it is important
that Managers know that it could also
have repercussions before and after their
appointment. A newly appointed Manager
can indeed be held liable for ongoing failures
relating to VAT due for past periods, as the
obligation to pay VAT survive until effective
payment. Similarly, a removed Manager
remains liable after the termination date
for failures in performance of their duties
during the mandate.
This new liability together with the general
increase of VAT penalties and creation of
criminal penalties underline the importance
of being fully compliant at all times with
Luxembourg VAT legislation and, in particular,
of ensuring that the company always:
• Registers for VAT on time.
• Files accurate and complete VAT returns.
• Files VAT forms and pays the related VAT
within the deadlines.
• Complies with other VAT obligations (issuance
of valid invoices, accounting, FAIA (Fichier
Audit Informatisé AED) when required).
• Computes amounts of recoverable VAT and
payable VAT based on accurate figures.
In case of failure
in the performance
of their duties,
managers are
personally and
jointly liable for
the payment of
VAT due by the
taxable person
they manage.