The European Court of Justice has announced a judgment in a case where the Supreme Administrative Court, HFD, (HFD 2018-12-03, case no. 4302-17) decided to obtain a preliminary ruling regarding the Swedish rules in the VAT Act (1994: 200), ML, if taking over the adjustment obligation is contrary to EU law.
The European Court of Justice considers that the VAT Directive constitutes an obstacle to national legislation which stipulates that the seller of a property is not obliged to adjust a deduction for input VAT if the buyer is to use the property exclusively for transactions that give a right to deduct, while also requiring the buyer to adjust the deduction. the remainder of the correction period at the time when the buyer in turn transfers the property to someone who is not to use the property for such transactions.
On the other hand, the European Court of Justice has not answered the question of whether the same assessment also applies to the adjustment of deductions when real estate is transferred through such a transfer of assets as referred to in Article 19 of the VAT Directive (so-called business transfer).
The current case has not yet been decided by HFD, which now has to decide how the European Court of Justice’s preliminary ruling should be interpreted. In the case at HFD, the Swedish Tax Agency has stated that the buyer can be imposed an adjustment obligation in the situation in question in the case, partly because the provisions in ML on taking over the adjustment obligation in ML are compatible with the VAT directive, and partly because the transfer of the property should be seen as such a transfer of assets. referred to in ch. § 1 b ML (Article 19 of the VAT Directive).
The Swedish Tax Agency considers that HFD’s interpretation of the European Court of Justice’s preliminary ruling must be awaited before the Swedish Tax Agency can decide to what extent and in which situations the application of the current provisions in ML is affected by the European Court of Justice’s ruling.
Source: skatteverket.se
