The Court states that a person claiming an exemption must provide and, if necessary, prove the facts and circumstances on the basis of which it can be determined that their activities are exempt from turnover tax.
In this case, the taxpayer relies on the exemption for the rental of immovable property, as defined in Article 11, paragraph 1, subparagraph b of the VAT Act. According to established case law of the Court of Justice of the European Union (CJEU), the concept of “rental” is an autonomous concept of EU law and exemptions must be interpreted strictly because they deviate from the general principle that VAT is levied on every service provided by a taxable person for consideration.
The CJEU has defined the concept of rental of immovable property as follows: rental essentially consists of a landlord granting a tenant, for an agreed period of time and for consideration, the right to use an immovable property as if he were the owner and to exclude others from that enjoyment.
The CJEU assumes that the rental of immovable property is generally a relatively passive activity that is only related to the passage of time and does not provide significant added value. Therefore, this activity must be distinguished from other activities that have a commercial or industrial character.
In this case, the Court finds that the taxpayer does not provide the tenant with (a part of) an immovable property that he can use as if he were the owner. The exclusive right of access to the storage unit (inboedelbox) does not extend to the part of the warehouse where the storage unit is located.
Furthermore, the agreement between the taxpayer and the tenant does not aim to provide the tenant with (a part of) an immovable property that he can use as if he were the owner. The tenant agrees that the storage unit will be stored by the taxpayer in an inaccessible part of the central storage warehouse, at a location determined by the taxpayer.
In addition, the taxpayer provides several ancillary services, such as loading/unloading the storage unit and transporting it to and from the storage location. The Court concludes that these ancillary services have a significant added value, indicating that the agreement between the taxpayer and the tenant does not involve the passive provision of a storage unit. Rather, the taxpayer’s services have a commercial character.
Based on the above, the Court determines that the service “Boxx on wheels” provided by the taxpayer does not qualify as the rental of immovable property as referred to in Article 11, paragraph 1, subparagraph b of the VAT Act. As a result, it is not disputed that the additional assessments were correctly imposed.
Source: rechtspraak.nl
