VATupdate
VAT

Guidance: Transactions taxable by express provision of the law

I. Sales of fixed assets carried out by the administration in charge of the domains

1

Certain government services or establishments are subject to value added tax (VAT) on all or part of their operations.

This liability authorizes them to deduct the VAT relating to the acquisition of fixed assets allocated to their activity subject to the tax.

As a result, the disposal of these fixed assets having given rise to a right to deduction must in principle be subject to VAT ( BOI-TVA-CHAMP-10-20-30 ). However, some exemptions remain. In these situations, an adjustment of the tax initially deducted must be carried out, in accordance with the provisions of III of article 207 of annex II to the general tax code (CGI) . Correlatively, it must be delivered to the purchaser, if it is liable for VAT, a certificate which mentions the amount of the tax which it is likely to deduct (CGI, ann. II, art. 207, III-3 ).

The developments of I § 10 to 160 specify the respective obligations of the services or establishments of the State and of the administration in charge of the domains when the latter, in accordance with article R. 3211-35 of the general code of the property of public persons (CGPPP) and article R. 3211-36 of the CGPPP , disposes of their assets.

A. Rules applicable to the sale of fixed assets made by the administration responsible for the domains

1. Delivery of goods to the administration in charge of the domains

10

The delivery service returns to the administration in charge of the domains, for the purpose of disposal, the materials of any kind which it no longer needs.

This delivery to the administration in charge of the domains is recorded in the minutes, but the custody of the goods remains entrusted to the delivery service.

20

The administration in charge of the domains then proceeds with the sale, reports it to the delivery service and pays it the proceeds of the sale.

The sale can be either amicable or public.

2. Amicable transfers of used movable property

has. Principle

30

Amicable disposals of movable property are subject to VAT when they relate to fixed assets which have given rise to the right to full or partial deduction by the delivery service, and this, regardless of the quality of the purchaser (company or second-hand goods dealer). The tax base is made up of the total selling price of the property, including the flat-rate tax provided for in article A. 113 of the State domain code (C. dom. Etat) (the rate is set by article A. 114 of the State Dom. C. ). The VAT rate applicable to the transfer is the rate to which the same property is subject in new condition, on the day of the event.

As a result, sales of goods which have not been subject to a deduction are not subject to VAT. This is the case when the delivery service used them for the purposes of its activities placed outside the scope of VAT or for its exempt activities not giving rise to the right to deduct, or even because the goods concerned are excluded the right to deduct (passenger vehicles).

b. Consequence of the taxation: global regularization of the right of deduction by the seller

40

The seller may, if necessary, make a global adjustment when the transfer of the property is taxable on the total price or the total value and benefit from an additional deduction.

3. Public auctions

50

Deliveries by VAT payers of goods sold at public auction are subject to VAT. Sales made by persons not liable for VAT remain subject to registration fees only. Nevertheless, it is recalled that deliveries of new goods sold at public auction are subject to VAT. With regard to the case of deliveries made by legal entities governed by public law, the VAT regime for goods sold at public sale through the intermediary of the administration responsible for the domains is, for the most part, similar to that already provided for for amicable assignments ( IA-2-a § 30 ).

60

These public sales, whether or not subject to VAT, bear the fixed tax provided for in article A. 113 of the C. dom. State (the rate is fixed by article A. 114 of the C. dom. State ).

Public sales carried out by the administration in charge of domains on behalf of State administrations and public establishments are not subject to VAT when they are carried out by these bodies acting as public authorities, in accordance with the provisions of article 256 B of the CGI .

This is particularly the case when:

  • the administration in charge of domains sells, as an agent, goods in the name and on behalf of other administrations or public establishments placed outside the scope of application of VAT;
  • the administration in charge of the domains or the general direction of customs and indirect rights proceed to the auction of goods seized or goods abandoned by their owner.

70

However, in the latter case, when the sale relates to new goods or goods which were subject to VAT when imported and which have not been used in France, it is subject to the VAT, so as to avoid a remanence of tax for the liable purchaser.

Finally, when the sale relates to goods which have given rise to the right to partial or total deduction (sale of investment goods of a public institution, for example), it is subject to VAT under the conditions of common law.

4. Disposals of immovable property

80

A distinction should be made depending on whether the assignor carries out the transaction as a taxable person or outside the framework of an economic activity.

has. Transfers of buildings by a taxable person acting as such

90

Transfers of building land within the meaning of 1° of 2 of I of Article 257 of the CGI and of buildings completed less than five years ago are taxable.

100

The delivery is exempt when it concerns land which is not building land within the meaning of 1° of 2 of article 257 of the CGI or on a building completed more than five years ago ( CGI, art. 261 , 5 ). However, the delivery of these buildings may be subject, under certain conditions, to an option for taxation, in accordance with 5° bis of article 260 of the CGI .

The seller must, where applicable, adjust the tax liquidated upon delivery to himself or borne upon acquisition, when the sale takes place before the end of the nineteenth year following delivery to itself or the acquisition, in accordance with 1° and 2° of 1 of III of article 207 of appendix II to the CGI .

b. Disposals of buildings outside the framework of an economic activity

110

Transfers of buildings made by a person who is not subject to the tax or who does not act as such fall outside the scope of VAT (for more details, please refer to BOI-TVA-IMM- 10-10-10-10 ).

B. Arrangement adopted

120

It will be considered that the administration in charge of the domains acts as an agent acting in the name and on behalf of the delivery service which is responsible for selling the goods given to it.

It is therefore only when the sale is concluded by the service that adjustments to the deductible tax must be made, if necessary.

To apply these principles, the following system should be retained.

1. Handover of the property to the administration in charge of the domains (phase 1)

130

The delivery report will include the following information:

  • nature of the property;
  • date of its acquisition;
  • amount of VAT relating to this acquisition;
  • property giving rise to a right of deduction (yes or no);
  • amount of VAT deducted during this acquisition (if applicable, taking into account the applicable deduction coefficient).

The delivery service also establishes in duplicate, only if the goods are delivered within the regularization period mentioned in II of article 207 of appendix II to the CGI , a certificate of delivery of goods to the administration in charge of the domains ( whose model is available at BOI-FORM-000062 ) including the following information:

  • the description of the property;
  • the identification number (if any);
  • the date of acquisition;
  • the amount of VAT mentioned on the purchase invoice.

2. Sale of the property (phase 2)

140

During the sale, the administration in charge of the domains:

  • either mentioned on the submission, when it is an amicable transfer, the identity of the transferor, the price excluding tax of the property and the amount of VAT;
  • or complete the certificate if the sale takes place during the regularization period.

A copy of the document served is given to the purchaser upon payment of the price, the second is sent to the delivery service upon sale.

3. Consequences for delivery services (phase 3)

150

When the sale has been subject to VAT, the delivery service has received the submission which is an invoice and declares the same month the VAT mentioned. If necessary, he makes a regularization in order to benefit from an additional deduction.

160

When the sale has not been subject to VAT, the delivery service carries out, if necessary, an adjustment in order to calculate the repayment that it must make.

This repayment must be mentioned on the declaration of turnover subscribed for the month during which the sale was actually made.

II. Disposals of aircraft or aircraft components

170

Pursuant to 4° and 5° of II of Article 262 of the CGI , deliveries of aircraft or aircraft components used by air navigation companies whose services to or from abroad or overseas departments and territories, excluding metropolitan France, representing at least 80% of the services they operate are exempt from VAT ( BOI-TVA-CHAMP-30-30-30-20 ) .

180

When these same devices or parts of devices are resold by the companies mentioned in II § 170 to other companies that do not meet the conditions listed in 4° of II of article 262 of the CGI, to benefit from the exemption, the sale must be subject to VAT. On the other hand, the exemption previously granted is not called into question.

III. Changes in the assignment of vessels, products incorporated into vessels, gear and fishing nets

190

2° and 3° of II of article 262 of the CGI exempt from VAT deliveries relating to:

  • maritime merchant ships assigned to navigation on the high seas;
  • boats used for the exercise of an industrial activity on the high seas;
  • boats assigned to professional maritime fishing, rescue and assistance boats at sea;
  • objects intended to be incorporated into these boats or used for their operation at sea as well as gear and nets for sea fishing ( II-A § 80 and following of BOI-TVA-CHAMP-30-30-30-10 ).

200

When these goods (boats, incorporated objects, gear and fishing nets) cease to be assigned exclusively to the use which justifies the exemption, VAT becomes payable ( CGI, art. 257, III-2° ). It is declared, and if necessary deducted, under the conditions of common law on the declaration of turnover relating to the month during which the allocation to one of the uses required for the benefit of the exemption ceased.

The tax base for this taxable transaction is made up of the purchase price excluding tax of the property or similar property assessed on the day of the event giving rise to the taxation. Consequently, the purchase price corresponds to the market value of the property on the day of the change of use, but in no case to its net book value. The applicable rate is that in force on the day of the change of use of the property. If applicable, the VAT thus collected is deductible according to the rules of common law if the goods concerned remain, after the change of use, used by the taxable person to carry out operations giving rise to the right to deduction.

IV. Contribution to public broadcasting

(210-220)

225

Article 6 of law n° 2022-1157 of August 16, 2022 on amending finances for 2022 abolished the contribution to public broadcasting. The comments contained in this IV § 210 and 220 are therefore withdrawn from the date of publication mentioned above. For previous comments, please see previous versions of this document in the “Published Versions” tab.

V. Imports

(230-270)

275

The comments relating to imports contained in this V § 230 to 270 are transferred and updated to BOI-TVA-CHAMP-10-30 as of the date of publication mentioned above. For previous comments, please see previous versions of this document under the “Published Versions” tab.

Source: gouv.fr

Sponsors:

VAT news
www.vatupdate.com
VAT news

Advertisements:

  • VAT news