No official information available yet on Curia
However, minbuza.nl published the following information (this is an unofficial translation):
Keywords : Permanent establishment; VAT;
Subject :
• Sixth Council Directive (77/388 / EEC) of 17 May 1977 on the harmonization of the laws of the Member States concerning turnover taxes – Common system of value added tax;
• Council Directive 2006/112 / EC of 28 November 2006 on the common system of value added tax;
• Council Directive 2008/8 / EC of 12 February 2008 amending Directive 2006/112 / EC as regards the place of supply of a service;
• Council Implementing Regulation (EU) No 282/2011 of 15 March 2011 laying down implementing measures for Directive 2006/112 / EC on the common system of value added tax;
Facts:
The applicant is a company which has its registered office and management in Jersey and which is active in the real estate, asset management and housing and housing sectors. She has owned a property in Austria since 1995, which she leased to two domestic entrepreneurs under VAT. The turnover generated by the rental was its only domestic income. The applicant had entrusted the management of the property to an Austrian property manager who essentially carried out support and management tasks. The applicant retained the power to take fundamental decisions. The property manager used his own office space and technical equipment for his activities, which were spatially and / or functionally separate from the applicant’s real estate. The tax authorities charged VAT on the services provided by the applicant and ordered the applicant to pay the VAT in question. The applicant challenges that decision by referring to the referring court.
Consideration:
The applicant considers that the property it leases is not a permanent establishment due to the lack of staff and that, in accordance with Article 196 of the VAT Directive, the VAT debt is therefore transferred to the domestic customer. The tax authorities, on the other hand, are of the opinion that a property rented domestically does constitute a permanent establishment in the interior. The referring court has doubts as to the interpretation of the concept of “permanent establishment”, which is why it refers the matter to the Court.
Preliminary question:
Should the concept of ‘permanent establishment’ be understood to mean that there must always be the deployment of personnel and technical equipment and, therefore, that the service provider’s own personnel must necessarily be present in the establishment, or may, in the specific case of taxable rental of a real estate located in the interior, which only consists of a tolerated use, can this establishment be regarded as a ‘permanent establishment’ without the use of personnel?
Cited (recent) case law: (C-168/84); DFDS (C-260/95); ARO Lease (C-190/95); (C-73/06); (C-605/12); Lease Plan (C-390/96);
