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Overview of VAT ECJ judgments and AG opinions in 2019 (status Aug 30, 2019)

Please find below an overview of the VAT ECJ judgements and AG opinions in 2019.
For each case, we provide further background information (just click on the relevant case).
If you have any comments or suggestions, please do not hesitate to contact us.

C-410/17 A Oy FI Value
Demolition services and disposal of waste materials; Single supply or barter
C-310/16 Dzivev e.a. BG Evidence
Use of evidence obtained in breach of national law for a VAT fraud case
C-165/17 Morgan Stanley & Co International FR Right to deduct VAT
Deduction of input tax — Goods and services used for both taxable transactions and exempt transactions (mixed-use goods and services) — Determination of the applicable deductible proportion — Branch established in a Member State other than that of its principal establishment — Expenditure incurred by the branch used exclusively for the transactions of the principal establishment — General costs of the branch used for both its transactions and those of the principal establishment)
C-434/17 Human Operator HU Right to deduct VAT
Deduction of VAT — Determination of the taxable person liable for VAT — Retroactive application of a derogating measure — Principle of legal certainty)
C-562/17 Nestrade ES Right to deduct VAT
Principles of equivalence and effectiveness — Company not established in the European Union — Preliminary and final decision refusing the refund of VAT — Incorrect VAT identification number)
C-531/17 Vetsch Int. Transporte AT Exemption
Exemptions from VAT on importation — Imports followed by an intra-Community transfer — Subsequent intra-Community supply — Tax evasion — Refusal of the exemption — Conditions)
C-278/18 Sequeira Mesquita PT Exemption
VAT exemption leasing of immovable property; transfer of use of rural properties comprising of vineyards. the exemption from VAT on the leasing or letting of immovable property provided s applicable to a contract for transfer of the use of land comprising vineyards for agricultural purposes to a company engaged in viticulture, entered into for a period of one year, automatically renewable and under which rent is paid at the end of each year
C-145/18 Regards Photographiques FR Rate
AG Opinion: Special arrangements – Art objects – Reduced rate of VAT – Photographs taken by the artist, printed by him or under his supervision, signed and numbered, with a circulation of up to 30 copies)
C-647/17 Srf konsulterna SE Place of supply of services
Place of taxation of services in respect of admission to events. The Court has just recalled that the services covered by the rule covering the access to educational and scientific events, such as conferences and seminars, include services whose essential characteristics are to grant a right of access to an event in exchange for a ticket or remuneration. This is notably the case for professional training. According to the Court, the fact that these courses were the subject of registration and a prior payment is irrelevant
C-449/17 A & G Fahrschul-Akademie DE Exemption
Exemption for certain activities in the public interest — School or university education — Concept — Driving school tuition provided by a driving school)
C-71/18 KPC Herning DK Exemption
AG Opinion: Land with building to be demolished not ‘building land’ – This case concerned two sales of the same property. At the times of both sales, there was a warehouse on the site, but it was the intention of all three parties to the sales that the warehouse should be almost completely demolished in order to carry out housing development, with only part of one gable being retained. The tax authority ruled that both sales should be treated as taxable sales of building land. But the Advocate General (AG) has suggested that the transactions should each be judged in their own right and according to the facts at the time of sale, not according to the future intentions of the parties. They were not, therefore, supplies of building land
C-201/18 Mydibel BE Right to deduct VAT – Adjustment of VAT Deduction
No automatic adjustment of VAT in case of sale and lease back. CJEU notes that the “sale and lease back” arrangements were purely financial transactions designed to increase the Mydibel’s liquidity and that the buildings at issue remained in the possession of Mydibel. Those facts appear to indicate that each “sale and lease back” operation should be regarded as a single transaction.
C-275/18 Vinš CZ Right to deduct VAT
Exportation with no customs document. The failure to comply with the formal requirement of placing the goods intended to be exported under the export customs procedure cannot lead to the exporter losing his right to the VAT exemption on export, provided that it is established that the goods concerned have actually left the territory of the European Union
C-214/18 PSM „K” PL Taxable amount
Enforcement fees inclusive of VAT. VAT regulations allw an administrative practice of the competent national authorities under which the VAT relating to supplies of services by a court enforcement officer in an enforcement procedure is regarded as included in the fees charged by that office
C-691/17 PORR Építési Kft. HU Deduction of VAT
No VAT recovery if reverse charge applies. In case of failure to comply with a substantive requirement of the reverse charge regime and the VAT it paid to the service providers was not due, it could not claim a right to deduct the VAT charged.
C-265/18 Jarmuškienė LT Special scheme small businesses
VAT accounting when the annual turnover limit for the special scheme for small businesses is exceeded.
C-225/18 Grupa Lotos PL Right to deduct VAT
Input VAT recovery on accommodation and catering services. the input tax incurred by the taxpayer was covered by Poland’s valid standstill clause and not recoverable. The Court did add that the Polish change, made after accession, to widen the block so that relevant purchases by businesses providing tourism services were also covered by it, was not allowed under Article 176.
C-224/18 Budimex PL Chargeable event
Time of taxation; construction works; formal record of acceptance required. VAT regulation allow if an invoice relating to the performance of the service supplied is not issued or is issued late, the formal acceptance of that service from being regarded as the time when that service was supplied, where, as in the case in the main proceedings, the Member State provides that VAT is to become chargeable on expiry of a time limit running from the day when the service was supplied, provided, first, that the formality of acceptance was stipulated by the parties in the contract that binds them according to contractual terms reflecting the economic and commercial realities in the field in which the service is supplied and, second, that that formality constitutes the actual completion of the service and determines the amount of consideration due, which is for the referring court to ascertain.
C-133/18 Sea Chefs Cruise Services FR Right to deduct VAT
ECJ confirms ‘8th Directive’ refund possible despite delay in providing evidence – Based on an unofficial translation, the ECJ has held that a business should not automatically lose its right to a refund of VAT incurred in another Member State under Directive 2008/9/EC (formerly the 8th VAT Directive), solely on the ground that it failed to supply ‘additional information’ within the statutory one month time limit
C-127/18 A-PACK CZ CZ Taxable amount
Bad-debt relief; exclusion of a reduction of the taxable amount. A taxable person can correct the value added tax (VAT) taxable amount, in the case of total or partial non-payment, by its debtor, of a sum due in respect of a transaction subject to that tax, if the debtor is no longer a taxable person for the purposes of VAT.
C-712/17 EN.SA. IT Right to deduct VAT
VAT consequences of non-existent transactions. A fictitious circular sales of electricity made between the same traders and for the same amounts did not cause tax losses, The right to deduct VAT can be refused if relating to fictitious transactions while requiring the persons who enter VAT on an invoice to pay that tax, including for a fictitious transaction, provided that national law allows the tax liability arising from that obligation to be adjusted when the issuer of that invoice, who was not acting in good faith, has, in sufficient time, wholly eliminated the risk of any loss of tax revenue, this being a matter for the referring court to ascertain.
C-568/17 Geelen NL Place of supply
Live interactive erotic webcam sessions – Place where a service is actually performed
C-566/17 Związek Gmin Zagłębia Miedziowego PL Right to deduct VAT
Right to deduct where there are no (pre) pro-rata rules in national level. ECJ has decided that the Polish national practice whereby there was at the relevant time no apportionment of VAT in the above fact pattern (mixed use for taxable economic, and non-economic activities) is precluded.
C-235/18 Vega International Car Transport and Logistic PL Right to deduct VAT; Exemption
Fuel cards – exemption. Holding company provides its subsidiaries with fuel cards and it plays no more than an intermediary role in the purchase of the goods. As the subsidiaries were sole decision-makers regarding the purchase of fuel (quantity, quality, type, fuel station, etc.) and were integrally supporting the fuel costs, the Holding cy could not be considered as holding the right to dispose of any tangible property as owner. By applying the surcharge the taxpayer receives payment for a service. Court considered that this was a financial service being the financing in advance of the purchase of fuel and therefore the holding company acts in the same way as an ordinary financial or credit institution.
This constitutes a genuine financial transaction – the granting of credit for the purposes of Article 135(1)(b) and is therefore exempt. As there was no actual supply to the holding cy, it was not in position to recover VAT in Poland.
C-185/18 Oro Efectivo ES Taxable transactions
indirect tax on movable property from private individual compatible with EU VAT. VAT regulations allow the purchase of movable property with high gold or other precious metal content by a business to an indirect tax other than VAT, if those assets serve the economic activity of that business through the sale of these assets – for the purpose of processing or returning to commercial circulation – to other businesses manufacturing precious metal bars or other objects.
C-420/18 IO (TVA – Activité de membre d’un conseil de surveillance) NL Taxable persons
A member of the supervisory board of a housing foundation is not to be regarded as a taxable person independently carrying on an economic activity for VAT purposes, provided that, in that capacity, he acts on behalf of and under the responsibility of the Supervisory Board, does not bear the economic risk arising from its activities, and receives fixed remuneration which does not depend on his participation in meetings or the hours of work which he has performed.
C-291/18 Grup Servicii Petroliere RO Exemption
VAT zero rate; supply of vessels; offshore jackup drilling rigs .The expression”vessels used for navigation on the high seas does not apply to the supply of offshore jackup drilling rigs such as the ones at issue in the main proceeding which are mainly immobile when carrying out drilling activities at sea.
C-597/17 Belgisch Syndicaat van Chiropraxie and Others BE VAT rate
National legislation may differentiate between therapeutic interventions or treatments, and medicinal products and medical devices supplied in the context of interventions or treatments intended exclusively for aesthetic purposes, by excluding the latter from the benefit of the reduced VAT rate.
C-316/18 The Chancellor, Masters and Scholars of the University of Cambridge UK Right to deduct VAT
Right to deduct; direct link; VAT exempt and non-economic transactions. a taxable person that (i) is carrying out both taxable and exempt activities, (ii) invests the donations and endowments that it receives by placing them in a fund and (iii) uses the income generated by that fund to cover the costs of all of those activities is not entitled to deduct, as an overhead, input value added tax paid in respect of the costs associated with that investment.”
C-242/18 UniCredit Leasing BG Taxable amount
Adjustment of taxable amount – Termination of financial leasing agreement. ECJ essentially held that art 90(2) Principal VAT Directive entitles the Member State to derogate from art 90(1) to deny adjustments of output VAT in these instances of non-payment, Unless the taxpayer can show a ‘reasonable likelihood’ that payment (of the rentals or the termination payment) will not be made (which the national court must determine). Adjustment must also be allowed where the output VAT was originally the subject of a tax assessment which can no longer be appealed.
C-273/18 Kuršu zeme LV Right to deduct VAT
Right to deduct; sham transactions; no indication of possible loss for Treasury. ECJ noted that the prevention of tax evasion, avoidance and abuse is an objective recognised and encouraged by the VAT Directive, but it is not permissible for the national courts and tax authorities to refuse the right of deduction unless it is shown, in the light of objective evidence, that that right is being relied on for fraudulent or abusive purposes.
C-26/18 Federal Express Corporation Deutsche Niederlassung DE Taxable transaction
Import of goods; (risk of) entry into economic network. When a good is introduced into the territory of the European Union, it is not sufficient for the good to infringe customs law in a Member State and generate a customs debt there in order to consider that the respective good entered the economic network of the European Union in this Member State when it is proven that the same good was transported to another Member State, which is its final destination, where it has been consumed and where, consequently, the import VAT becomes due.
C-388/18 B (Chiffre d’affaires du revendeur de véhicules d’occasion) DE Special scheme small businesses
Special scheme for small businesses; margin scheme; turnover . VAT legislation do not allow an administrative practice under which the turnover serving as a reference for the purposes of applying the special scheme for small enterprises to a taxable person to which the special margin scheme applies is calculated according to article 315 of this Directive taking into account only the profit margin. The turnover must be calculated based on all amounts, excluding value added tax, received or to be received by the taxable person, irrespective of the manner in which the amounts will be effectively taxed.
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