I SA / Sz 64/22 – Judgment of the Provincial Administrative Court in Szczecin
Facts
E.-L. GmbH is a German trading company headquartered in N.
in S. at ul. […], registered under the VAT number […], established on the basis of the articles of association of […] April 1997. According to the excerpt
from the German Commercial Register No. […] drawn up on […] November 2016, the subject of business activity was the leasing of commercial vehicles and all types of trailers, as well as their rental and trade, both
in Germany and abroad, in Europe.
In the course of the tax audit and tax proceedings conducted, the authority
Of the first instance established that the party had filed an identification application in Poland. She indicated the place of business at the address of K. At the same time, it stated, with the description of a descriptive atypical address, that it was the place of the service only
in the field of real estate rental.
Decision
Taking into account the above arguments, the court concluded that
in the case at hand, the tax authorities did not show that the applicant had
in the country, a permanent place of business within the meaning of art. 28b paragraph. 2 of uptu The evidence gathered by the authorities and its analysis lead to the conclusion that the institution referred to in Art. 28b paragraph. 2 uptu
In support of the above position, it should be pointed out that the Supreme Administrative Court accepting the assessment expressed in the justification of the judgment of the court of first instance, i.e. in the judgment of the Provincial Court in Warsaw of December 20, 2018, file ref. no. III SA / Wa 154/16, in the judgment of 22 October 2021 in case I FSK 1519/19 it should be indicated that: “when determining the place of taxation, the main point of reference is the seat of economic activity. Another place is taken into account only when the reference to the seat leads to unreasonable results or creates a conflict with regard to another Member State (CJEU judgments of: July 4, 1984, Birkholz, EU: C: 1985: 299, point 17, of May 2, 1996, Faaborg-Gelting Linien, C-231/94, EU: C: 1996: 184, point 16, with October 16, 2014 Welmory sp. Z oo, C – 605/12, EU: C: 2014: 2298, point 53). This alternate position should only be established in exceptional circumstances and cannot be presumed. The purpose of the rules governing the place of taxation of services is to avoid, on the one hand, confluence of properties which may lead to double taxation and, on the other hand, non-taxation of revenues (see in particular judgment C-218/10, EU: C: 2012: 35, paragraph 27 and the case-law cited there). The analysis in this regard must respect the principle of taxation once again, proportionality and VAT neutrality. “
The authorities in the case under examination did not demonstrate that such an exceptional situation occurred that would lead to the non-taxation of the disputed transactions, on the contrary, the authorities admitted that the purchase of services was taxed by the customer. On the other hand, acceptance of the position of the authorities could lead to double taxation of services, e.g. in the event of the expiry of the limitation period for a specific tax liability.
In addition, it should be noted that in the judgment of 7 April 2022 in the case C-333/20, the CJEU confirmed that the facilities owned by the taxpayer in the country should be sufficient to receive services, but these services should be provided by another entity, because it is the back office itself cannot provide services to itself.
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