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Supreme Court: provision of a club building more than passive rental

The appeal by the State Secretary is directed against the judgments in which the Court assumed that the services provided by the taxpayer involved more than passive rental of immovable property. The appeal argues that it is important to consider whether the recipient uses the sports facility for sports activities as defined in the relevant provision. The appellant contends that the use made of the sports facility by the Foundation does not qualify as sports activities and therefore cannot fall under the relevant provision. Furthermore, the appellant argues that the taxpayer grants exclusive use of the sports facility to the Foundation for after-school care, which should be exempt from value-added tax according to the law.

The Court of Appeals’ judgments and conclusions, which state that the taxpayer’s services encompass more than passive rental, do not indicate any incorrect legal interpretation and cannot be reviewed for accuracy in the cassation procedure, as they involve factual assessments. Contrary to the appellant’s argument, it is not relevant whether the Foundation and the football club use the sports facility in a manner that meets the criteria for applying the reduced VAT rate. The passive or non-passive nature of the rental of immovable property is determined by the nature of the transaction itself and does not depend on how the tenant uses the property.

Therefore, in this cassation procedure, it must be assumed that the exemption provided in the relevant provision does not apply to the services performed by the taxpayer, which go beyond passive rental, both with regard to the Foundation and the football club. Consequently, the tax authority incorrectly assumed that the taxpayer should account for a self-supply transaction based on the applicable law. As a result, the tax assessment cannot be based on such a transaction.

Source: uitspraken.rechtspraak.nl

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