Data as a value added tax payment?

1. Introduction

In the context of the ongoing digitalization of our economy, various new business models with digital products have been established in recent years, such as mail order platforms (e.g. Amazon, Alibaba), search engines (Google), social media (e.g. Facebook, LinkedIn, Tinder), games or smartphone apps. A common feature of these business models and products is the fact that at first glance the (usually private) user usually receives the services free of charge and does not have to pay a fee. Whereas ten years ago, for example, you had to buy an expensive navigation device for your car with annual updates of the road maps, today you use free apps from large, mostly American Internet companies for navigation on your smartphone. However, if you take a closer look at these business models and products, users provide comprehensive data about themselves and their usage behavior. The data allows the actual operation of the digital products (e.g. navigation function, improved product offering on mail order platforms, better search results). They are also used for personalised advertising.

From the point of view of Swiss value added tax (domestic and purchase tax), the question arises whether such digital products qualify as a VAT-relevant service in exchange for user data (Art. 3 lit. c in connection with Art. 18 para. 1 of the Value Added Tax Act, MWSTG, for domestic tax; Art. 45 MWSTG, for subscription tax) and data as a relevant consideration for the tax base (Art. 24 para. 1 MWSTG, for domestic tax; Art. 46 MWSTG, for subscription tax). This question is relevant for both domestic and foreign companies. In the case of domestic companies, which are generally already registered for domestic tax purposes, the question arises as to whether they generate taxable turnover. In the case of foreign companies, it must be clarified whether the provision of electronic services (Art. 10 VAT Ordinance, MWSTV) to private, non-registered users does not give rise to a mandatory domestic tax liability (Art. 10 para. 2 lit. b no. 2 MWSTG).

This question must be examined in particular in the light of the principle of neutrality of competition in the levying of VAT (Art. 1(3)(a) VAT Act). This principle prohibits that "competitive relations are distorted by VAT".01 With reference to the introductory example of navigation devices, this means that the manufacturer of traditional navigation devices achieves a taxable turnover from the sale of navigation devices against payment, while the provider of "free" navigation apps on the smartphone may not provide a VAT service or there is no payment relevant to the tax base. This would discriminate against the traditional provider, as it would either make the services for the end customer more expensive (if passed on to customers) or reduce their margin (no passing on).

2. state of the discussion

The issue of whether supposedly free digital products can be qualified as a service for VAT purposes in exchange for data was discussed in Germany02, in Austria03 and in Switzerland04 was already discussed several years ago. In 2013, the Berlin Regional Court examined05 Google's terms of use for civil law purposes and recognized a reciprocal relationship. Based on this decision, there was controversial discussion as to whether a VAT exchange relationship under Art. 24(3) MWSTG (or analogous article in German or Austrian VAT law) existed. In particular, representatives of the German and Austrian tax authorities took the view that the consent to the processing of personal user data was to be seen as a consideration by the user in the context of a transaction similar to an exchange and that taxable transactions of the provider existed even without actual payment by the user.06 Tobias Rohner et al. rejected this view in their essay with regard to Swiss VAT law on the grounds that toleration of data processing "does not imply a legal position of an asset, a marketable legal position and the users [...] no will to perform relevant for VAT purposes".07 Consent to data processing is a "legal requirement for consent", which results from the Federal Data Protection Act (DSG).

However, the question of whether data could not be a VAT-relevant consideration according to Art. 3 lit. f MWSTG and Art. 24 para. 1 MWSTG has not yet been discussed. All previous essays in the German-speaking countries have focused exclusively on the question of whether such digital products in exchange for data qualify as a barter transaction, i.e. on the one hand the digital service as a relevant service and on the other hand the consent to tolerate data processing as a second service which is causally and closely related.

This article is intended as a contribution to the discussion on how such digital products could be assessed differently in terms of the tax system under Swiss VAT law.

3. concept of data

First of all, it must be clarified what is meant by the currently ubiquitous term "data". While there is no legal definition of the term in Swiss tax law in general and in VAT law in particular, the Data Protection Act provides certain indications. Art. 3 lit. a FADP defines the term "(personal) data" as "any information relating to an identified or identifiable person". Art. 3 lit. c FADP also mentions certain data that are claimed to be particularly worthy of protection (including religious views, health, criminal sanctions). In the Swiss legal system, the term "data" is also used in Art. 143 of the Swiss Criminal Code (SCC), which makes the unlawful acquisition of data a criminal offence. However, the article does not contain a legal definition.

The Duden defines data on the one hand as (numerical) value, data and formulatable findings obtained through observation, measurement, static surveys, etc., and on the other hand as electronically stored signs, data and information.08 In common parlance, data is often also understood to mean circumstances, facts or events.

In computer science, a distinction is made between data, information and knowledge. Data are different symbols and signs, whose meaning is only visible in a context. In combination with additional context, data become information and represent knowledge about facts and persons. The collected information about facts and persons finally becomes knowledge.09

It can be noted that there is neither a legal nor a generally applicable definition of the term "data". In the context of this paper, the author uses an information technology definition according to which data is any information that in a formalised way is suitable for communication, interpretation or processing by man or machine.10

4. concept of remuneration

4.1 Overview

Since the revision of the VAT law in 2010, remuneration has had a double meaning: on the one hand, it is a constituent element of the performance relationship (Art. 3 lit. c in conjunction with Art. 18 para. 1 MWSTG) and on the other hand, it is the relevant basis of assessment (Art. 24 para. 1 MWSTG).

4.2 Qualitative dimension

The tax object for domestic and purchase tax is a service relationship. Art. 3 lit. c MWSTG defines this as "the granting of a consumable economic value to a third party in anticipation of a payment". Art. 3 lit. f MWSTG defines remuneration as "an asset which the recipient [...] spends on the receipt of a service". The message on the VAT Act also speaks of the "qualitative side" of the term remuneration.11

In the doctrine, the term "asset" is openly defined and includes various forms such as money, money surrogate or even a value added tax benefit (barter transaction according to Art. 24 para. 3 MWSTG).12 The parties may also agree that the consideration is to be paid to a third party in an exempting manner. If an agreed remuneration is not spent or repaid due to insolvency or bankruptcy of the debtor or in the event of termination of the contract (nullity, lack of will), there is no performance relationship for lack of remuneration.13 Art. 3 lit. c MWSTG, which defines the performance relationship, requires a final, targeted action by the service provider with regard to the receipt of remuneration (principle of finality).14 However, the concept of remuneration per se must be assessed from the point of view of the recipient of the service, since the recipient must have the will to spend the asset in order to receive a concrete and individual (counter-)service15 (principle of causality16). In other words, from the point of view of the recipient, there must be an "internal economic link" between remuneration and (counter-)performance.17 However, according to Federal Court case law, causality cannot be assumed lightly and the link between service and remuneration must be based on a synallagma (exchange relationship).18 On the other hand, it is not assumed that the expenditure of the asset is made on the basis of a legal claim (contract, law); it can also be made voluntarily.19

It is precisely with regard to the question of whether there is a relevant performance relationship at all that the qualitative concept of remuneration must be distinguished from the concept of "non-remuneration" under Art. 18(2) MWSTG. This includes, for example, subsidies, donations, deposits in companies, dividends or payments for damages. The differentiation between remuneration and non-payment is primarily based on the criterion of linking the payment to an expected performance.20 In the case of subsidies, donations or dividends, although strictly speaking an asset is expensed, no consideration is expected in return.

The law, regulations and administrative practice21 do not comment on the question of whether the asset spent must also have an economically determinable monetary value in order to be a VAT-relevant service in accordance with Art. 3 letter c MWSTG.

4.3 Quantitative dimension

Article 24(1), first sentence, MWSTG requires that, where a supply relevant for VAT purposes exists, domestic tax be calculated on the "remuneration actually received". Art. 46 MWSTG regulates the basis of assessment for the reference tax analogously with reference to Art. 24 MWSTG. In the message, the "quantitative side" of the remuneration is mentioned.22 The EStV specifies the term "remuneration" as "monetary payment in the form of domestic or foreign means of payment, but also benefits in kind".

By "monetary benefits", the Income Tax Treaty understands by name (i.e. not conclusively) cheques, assumption of debt and promises of payment by third parties, exchanges, vouchers or offsetting against a counterclaim. Data are not mentioned, however. Bossart/Clavadetscher correctly state that the term "monetary benefit" was unfortunate in the choice of the Income Tax Treaty: On the one hand, there is no (value-added) tax benefit and on the other hand the term is already used in Swiss tax law (direct taxes, withholding tax).23

The author is of the opinion that the decisive factor in the quantitative concept of remuneration must be the existing possibility of attributing a monetary value in Swiss francs to the qualitative remuneration paid. The VAT Act only contains rules on valuation for exchange (Art. 24 para. 3 VAT Act) and payment instead of payment (para. 5), but not for the other forms of remuneration.24 However, according to the practice of the EStV, for most of the aforementioned forms of remuneration, the "amount which is thereby compensated" is the basis of assessment.25 In other words, according to the author's opinion, a subjective value agreed between the parties is used and not an objective one. However, if the service is provided between closely related persons, this subjective approach is exceptionally deviated from and an objective value ("as between independent third parties") is used (Art. 24 para. 2 VAT Act).

4.4 Interim conclusion

It can be stated that the VAT concept of remuneration is generally understood to be, in qualitative terms, an asset which is spent by the recipient in expectation of a service. Remuneration and expected (counter-)performance must be based on a synallagma. Quantitatively, the asset must be assigned a monetary value in Swiss francs, whereby this value must be assessed subjectively from the perspective of the parties.

5. data as payment?

5.1 Qualitative dimension

The first step is to determine whether data (i) is an asset that (ii) is spent by the beneficiary in anticipation of a specific, individual performance (synallagma).

5.1.1 Asset value

When using digital products such as mail order platforms, search engines, social media or smartphone apps, the user typically agrees when registering for the first time or downloading that various data will be made available to the provider and that the provider may use this data for various purposes. In addition to personal user data such as gender, date of birth or place of residence, this often involves usage data such as locations or shopping behaviour and, in the case of social media, content such as photos, videos, comments and likes.

Not every user may perceive her personal data as an asset like cash, precious metals or a work of art. Social and legal developments in recent years, particularly in Europe, show that personal data are increasingly being regarded as an asset worthy of protection. Many users of such digital services are not (or no longer) prepared to provide comprehensive personal data, and politicians are planning to protect them from misuse by means of increasingly stringent data protection laws. The scandal surrounding the transfer of user data by Facebook to the British consulting firm Cambridge Analytica in the run-up to the last US presidential election in 2016 or the discussions in Switzerland about the development of a COVID 19 tracking app by the Swiss government26 illustrate this development.

In their essay from 2018, Tobias Rohner et al. argued that data (or tolerance for processing personal data) has no objective value; they argued that (with reference to studies that were not cited) only a very small proportion of users read the terms of use and data protection, publish a lot of personal content in social networks and there is no economic trade-off between paid and free offers against data. This view must be rejected due to the social and legal developments of recent years. Not reading the terms of use and data protection and voluntarily publishing personal content does not mean that the user does not regard her data as an asset. Nor will a car enthusiast read through the entire purchase contract including the General Terms and Conditions for his Porsche. However, he will be happy to display it publicly afterwards.

As the example of translation services on the Internet used later in this paper shows (see Section 6.2), the digitally literate user does indeed weigh up paid and free services against data.

However, as assets, data have two special characteristics that traditional assets such as cash or precious metals do not have.

On the one hand, data have the peculiarity that a specific data set is not an objective asset for every person, such as a kilogram of gold. Health data such as weight, resting pulse rate and height are very valuable for the operator of a fitness app, but have no value for the operator of navigation apps or trading platforms. Data such as resting heart rate or weight are also worthless in themselves, but in conjunction with a person they become an asset. It is therefore the specific context of data that matters.

On the other hand, data has the property that it can be passed on without restriction and does not lose its substance. Traditional assets such as money or precious metals can be consumed, i.e. the owner can give up these assets in anticipation of a benefit and then no longer own them. For example, if a person buys a litre of milk for CHF 2, they will no longer have the cash. However, if you provide your data such as date of birth, usage patterns or locations to a provider of digital products (i.e. for processing and analysis), you still have this asset. In other words, data can be passed on as assets to one or more persons and you still (in civil law terms imprecisely27) "Owner" of his data. We will return to this second special feature later in this paper (see Section 7.1).

Despite these two particular characteristics, the author believes that data as defined in Section 3 of this paper qualify as an asset, but only in a specific context and on a case-by-case basis.

5.1.2 Synallagma

The user of digital services may not always consciously agree to the provision of his data and certain apps have in the past collected data without the user's knowledge (e.g. by linking IP addresses and IMEI numbers of mobile phones28). Nevertheless, the average user of digital offerings such as mail order platforms, search engines, social media or smartphone apps is aware, as a result of the broad media and political discussion, that he will only receive such "free" services in return for user and usage data and content. He allows the use of his data in expectation of a service. By actively agreeing to the use of his data when first using it or downloading it, the author believes that there is a direct economic link between the data as payment and the expected digital service. If, however, in a concrete individual case, the free digital service can also be claimed without user and usage data (e.g. by clicking the button "do not transmit data"), there is no remuneration.29 Furthermore, in the author's opinion, a synallagma is also to be denied if the application illegally collects and evaluates the data without the knowledge or active consent of the user.

In the opinion of the author, these digital business models therefore qualify in summary as a value-added tax service according to Art. 3 lit. c in connection with Art. 18 para. 1 MWSTG in the concrete individual case. However, a general qualification of all services against data as a value added tax service is to be rejected.

5.2 Quantitative dimension

In a second step, the question arises whether these data also have a concrete monetary value and thus allow the assessment of VAT. Monetary means a value expressed in Swiss francs.

First of all, it must be noted that user and usage data and content do not have an official market value such as securities or raw materials. There is no (legal) exchange or market on which data is traded between independent third parties and therefore no observable market price. Under certain circumstances there may be an illegal black market for stolen user and usage data, but in the author's opinion it would be disturbing to use such values for VAT purposes. It is also very difficult for taxpayers and tax authorities to obtain such market values on the black market.

Furthermore, with reference to the computer terms data, information and knowledge as explained in section 3 of this paper, mere symbols and signs have no value. However, they do have value when they are linked to additional context to information about facts and persons. For example, birthdays or locations have no monetary value in isolation, but they do have value when linked to the name and address of a person.

The fact that data in a specific context have a monetary measurable value is obvious and undisputed. Large US corporations such as Facebook and Alphabet (Google) make material profits and publish, for example, quarterly (marketing) revenue per user, i.e. the value of the data monetised by personalised advertising. However, since VAT is a transaction-related tax, it should be possible to break down this value to the specific individual user. For example, it will not be possible to determine the value of the data of a person who regularly uses a search engine. However, a bill is currently being discussed in the US Senate. This has the unwieldy title "Designing Accounting Safeguards to Help Broaden Oversight And Regulations on Data (DASHBOARD) Act" and aims to oblige data-driven groups to be transparent. It should be possible to determine the extent to which the data collected has contributed to profits.30

In their essay, Aigner/Bräumann/Kopfler/Tumple take the view that individual user data in itself has a certain value, but that this value is usually extremely low. The value-creating potential would only result from their collection, processing and targeted enhancement by the provider ("data mining").31

In practice, there are various methods of determining the value of data in individual cases from a business perspective. Cost-based or benefit-oriented valuation methods are conceivable. With cost-based methods, the value is determined on the basis of the costs of production, storage and maintenance. In the case of a use-oriented procedure, the value is determined on the basis of future cash flow.32 However, these are always one-sided methods in which the value is determined at the service provider (recipient of the data). However, as already explained, Swiss VAT law requires that the value of the remuneration be determined subjectively between the parties to the service.

In the case of digital services, it is admittedly difficult to determine the value of the data between the parties. With such offers, there is no actual contract negotiation in which the value or the scope of the data is negotiated as a fee. The conclusion of the contract is sometimes even tacit or implied. If a navigation app is downloaded and used on the smartphone, for example, no contractual negotiations take place regarding the value of the data.

In the author's view, the monetary value of the data can usually only be determined by comparable transactions or offers by the service provider. These are traditionally provided against money or money surrogates. The following examples illustrate this concept.

6. illustrative examples

6.1 Example 1 - Paywalls for newspapers

For many Swiss (daily) newspapers, access to articles via their homepage is of great importance nowadays. In order to counteract the threat of a drop in sales caused by free access to articles, some daily newspapers have recently introduced so-called "paywalls". This means that articles are only accessible for a fee (per article or for a monthly subscription). If you register and provide certain data, you can read a certain number of articles that are actually subject to payment per month "for free". In the data protection declaration, a well-known Swiss newspaper, for example, points out that the data will be used for "marketing measures and target group-specific advertising". By registering and disclosing certain data when the reader reads an article that is subject to payment, the value of this data can be indirectly determined. If, for example, he can read five paid articles every month through his data and the normal fee per article is CHF 1, the newspaper generates a taxable monthly turnover of CHF 5. It is irrelevant whether the user actually reads the articles. With a traditional newspaper subscription, the fee is also subject to VAT, even if the newspaper ends up unread in the waste paper.

This example can also be applied to certain foreign television stations that are not financed by fees, where, after registration, certain programmes can be watched free of charge on a tablet app in replay mode instead of paying a small fee per programme.

6.2 Example 2 - Online translation services

There are various providers on the Internet that allow free translations of short texts and documents. These services are based on algorithms that are continuously developed and trained, often on the basis of each individual translation request. The providers use different pricing models. In the free basic variant, a limited number or only character-limited texts can be translated per month, whereby the texts are saved and used for the algorithm according to explicit instructions. For example, a well-known provider from Germany states in its privacy policy that the texts and translations are stored for a limited period of time "in order to train and improve our translation algorithm". With the paid version, an unlimited number of translations can be made per month and the texts are neither stored nor used for training the algorithm. By preferring the free variant to the paid variant, but in return providing his data (i.e. texts) for training, a value can be attributed to these data. This constitutes a taxable turnover. The foreign provider of the translation service could therefore give rise to a domestic tax liability in Switzerland pursuant to Art. 10 (2) (b) (2) VAT Act if the indirectly determined value of the data (texts) exceeds the limit of CHF 100,000 per year.

7. further tax system considerations

7.1 Discrepancy of an excise nature?

Swiss value added tax is a general tax on consumption, which has the effect of restricting the quality of the tax goods to consumption. Non-consumable goods such as land or capital therefore do not give rise to taxation.33 The aim of value-added tax is to tax (private) income and assets for consumption purposes.34

As already explained earlier in this paper (see Section 5.1.1), data have the specificity that the "owner" can pass them on to one or more persons and still retain control over them. In other words, data do not lose substance through disclosure. In the literature, the tax system view is therefore sometimes expressed that there is no VAT-relevant consumption of digital products in exchange for data35as data cannot be "consumed".

The author rejects this view. The present paper deals with the question of whether data qualify as a value added tax charge. Traditionally, payment is understood to be official means of payment (Swiss francs, foreign currency) or other common means of payment such as bills of exchange or cheques.36 Money and capital have been regarded as non-consumable assets under Swiss VAT law since the beginning. It is therefore incomprehensible that a value-added tax benefit should be available for (digital) products against money, but not for those against data.

7.2 Double VAT registration?

In the literature, the opinion is also sometimes expressed that37 argue that in such business models the same data is already indirectly recorded with VAT at a later stage in the value chain and therefore reject the qualification of data as remuneration. Many providers use the collected user and usage data for personalised advertising by third parties, i.e. they allow advertising tailored to the user. It is undisputed that the insertion of advertising qualifies as a taxable service and since personalised advertising is generally more expensive than general advertising due to the lower scatter loss, the added value gained from the data is already taxed by the operator.

The author cannot follow this reasoning, as the following comparison with a traditional business shows: If a taxable business sells goods not for data but for money, this supply is undisputedly subject to VAT as a VATable service. If the money is now invested by the company in the development of new innovative products and the company can sell them at a later date, this sale is also recorded as a taxable supply. In this example, it would not be justifiable from a tax point of view not to recognise the first supply (sale of goods for money) for tax purposes, as the added value created indirectly with the money from the first supply (via research and development) would be taxed later.

Furthermore, data is not a specific feature of the digital economy. Even in the analogue world of real goods, a retailer, for example, can use information about her customers and their buying habits or their names and delivery addresses to align her warehousing, logistics and advertising with this information and thereby generate additional business opportunities (or even resell the data).38 One might think, for example, of the bonus programs of well-known Swiss retailers, which were introduced at the turn of the millennium.

8. conclusion

In summary, it can be said that data is, in the opinion of the author, an asset in qualitative terms. Thus, a value added tax-relevant performance ratio according to Art. 3 lit. c MWSTG in conjunction with Art. 18 para. 1 MWSTG. However, the assessment depends on the specific individual case and context and cannot be generally affirmed. In particular, in the case of illegally collected data, this must be rejected. From a quantitative perspective, however, the difficulty arises that the value of data for the assessment of VAT is difficult to determine. It is not directly possible to make a valuation within the meaning of Art. 24 (1) sentence 1 MWSTG, as there are no observable market values and common business valuation methods always take the view of the service provider (recipient of the data). Nor does the same data have a monetary value for each provider. In individual cases, the value can be determined indirectly via comparable, traditional transactions with money or money surrogates. If the value can be determined, the VAT on such digital services should be levied by the EStV in accordance with the collection principle of competitive neutrality (Art. 1 para. 3 letter a MWSTG).

"In the meantime, the recovery of data treasures is more rewarding than the recovery of mineral resources" Helmut Glassl