Taxpayer Division/Central Directorate Small and Medium Enterprises
Answer no. 584/2021
- Alfa s.r.l. (hereinafter, “the Applicant” or “Company”) has signed as tenant, a lease agreement for a property to be used as a hotel.
- The property was subject to the renovation and redevelopment of the same in the “turnkey” hotel, borne by the landlord.
- The contract is subject to some suspensive clauses, one of which concerns the renovation and redevelopment of the building “turnkey” by March 2019 by the Lessor.
- Following the failure to comply with the delivery time of the property the company terminated the contract. and obtained a refund.
- According to the case law of the Court of Justice preparatory activities must be considered economic activities. Anyone who carries out preparatory acts is therefore considered a taxable person. The actual or intended use of the goods or services only determines the amount of the initial deduction to which the taxable person is entitled and the extent of any adjustments but does not affect the emergence of the right to deduct (see Order of the Court of Justice of the European Union of 18 May 2021, case C-248/2021).
- The right to deduct, once it has arisen, remains, in principle, acquired even if, subsequently, the economic activity economic activity envisaged has not been carried out, so that it has not given rise to taxable transactions or if, due to circumstances beyond his control, the taxable person has not used the goods and services that gave rise to the deduction in the context of taxable transactions. Any different interpretation of the VAT Directive would be contrary to the principle of of VAT neutrality. In fact, this could create unjustified disparities between companies which already carry out taxable transactions and others which seeking, by means of investment, to initiate activities from which taxable transactions will derive. Actual carrying out of a business activity is not required, as the VAT can be deducted even in the absence of active transactions, with regard to preparatory activities, provided they are aimed at the establishment of the conditions of effective beginning of the typical activity (Supreme Court ruling no. 23994 of October 3, 2018).
- In the light of the aforementioned arguments, with regard to the case in question, it is deemed to exist – in principle – the right to reimbursement of the excess VAT paid and actually due on the purchases proposed by the company paid and actually due on purchases made prior to the start-up of the declared hotel business. This is on the assumption that the said purchases are actually connected with the planned hotel business and the resulting taxable taxable active transactions or active transactions which, in any event, pursuant to article 19 of the VAT Decree, confer the right to deduct.