VATupdate

ECJ Cases C-694/18 – C-697/18 (Ente Público Radio Televisión Madrid) – Questions – VAT exemption public sector; Public corporations or companies controlled by public authorities

On 7 January 2019, the European Court of Justice received 4 combined cases, C-694/18, C695/18, C-696/18 and C-697/18 (Ente Público Radio Televisión Madrid), dealing with the question if the VAT exemption for acts of public sector entities can be extended to public corporations or companies controlled by the public authorities.
Unofficial translation

Facts (simplified):

The facts and legal considerations and the questions referred for a preliminary ruling in the various cases (C-695/18, C-696/18 and C-697/18) essentially correspond to C-694/18.

Ente Público Radio Televisión Madrid, the public radio and television broadcaster of Madrid, was set up by the Comunidad de Madrid. This broadcaster is the sole shareholder of the commercial companies that manage the public radio and television services in the autonomous community. These are essentially public companies that are responsible for the provision of a public service.

The management operations carried out by the trading companies are mainly financed by public funds, supplemented by the funds they obtain from the sale of their products and advertising services.

The Spanish tax authorities are of the opinion that the corporate object of the commercial companies is not only to offer public radio and television services, but also to other activities, such as advertising for and selling their own products so that they have a dual character. This classification as a ‘dual taxable person’ implies that: (a) the provision of public radio and television services for the Ente Público is not subject to VAT; and b) the other activities are designated as economic activities for VAT purposes.

The broadcaster filed two complaints with the central judge in economic and administrative matters, arguing that all activities must be classified as economic activities and that he must therefore be granted the right to deduct the input tax paid on that whole activity.

Preliminary questions:

1. Can undertakings as described, together with the bodies governed by public law which they are constituted, be regarded for VAT purposes as a single taxable person within the meaning of Article 11 of Directive 2006/112 / EC?

2. If so, can the financing received by these undertakings from the bodies governed by public law which they are constituted then in no way be regarded as a consideration for the provision of services subject to VAT?

3. As regards the deduction of input tax paid by these companies, does the deductible amount have to be determined by the sole taxpayer as such, in application of Article 168 of Directive 2006/112 / EC and on the basis of the activities it has undertaken?

4. As regards, in particular, the activities of public service broadcasting – assuming that these activities may be of a dual nature and that the undertakings concerned, together with the bodies governed by public law having a majority holding in their capital, are regarded as a single taxable person – is only the part of the input tax deductible that can be considered to be related to their economic activity?

Source: minbuza.nl(Dutch)