VATupdate
VAT

Supreme Court confirms that a partnership with partners living abroad can be based in NL for VAT purposes

The Supreme Court has recently confirmed the view of the lower Court of ‘s-Hertogenbosch.

Both documents are in Dutch, but here’s an unofficial translation of some paragraphs:

Taking into account that elements such as those included in the Planzer judgment are not easily applicable to situations – such as the present one – in which an enterprise performs few economic activities, the Court considers the Court of Appeal judgment of 6 October 2011, Markus Stoppelkamp, ​​no. C- 421/10, ECLI: EU: C: 2011: 640 (hereinafter: the Stoppelkamp judgment) also important. In that judgment it was considered that points of reference which are directly related to the economic activity carried out by the entrepreneur must be taken into account first when determining the place of business. In the opinion of the Court, the facts and circumstances stated by the Inspector provide .. sufficient starting points with regard to the factors directly related to the economic activity carried out by the entrepreneur. The Court thus considers that the Inspector has made it plausible that the place of business of the person concerned was in the Netherlands… In the opinion of the Court, the Inspector has therefore complied with the burden of proof on him…

In support of its claim that it was established outside the Netherlands .., the interested party merely pointed to the fact that [H] lived in Germany on that date .. and [H1] in New Zealand … The interested party takes the position that, by referring to the partners’ private places of residence, it has made it plausible that the business was conducted (by telephone) from abroad.

In the opinion of the Court, the mere circumstance that the partners were living abroad at the time of the present deliveries is insufficient to conclude that the seat of the business was located abroad. In the Stoppelkamp judgment, the ECJ has considered that the private residence of a partner – and the other factors that can be taken into account in the second instance on the basis of the Planzer judgment – will only be dealt with if there are no direct leads related to the economic activity carried out by the entrepreneur. However, as the foregoing suggests, that is not the case in the present case.

tax