The appellant is a VAT group whose business activities consist mainly of operating bunker vessels. X purchased a motor yacht for €165,000 under the margin scheme. Subsequently, the appellant sold the yacht to one of its directors and major shareholders (hereinafter: the director) for €72,500. The sales invoice states that the margin scheme is applicable.
According to the tax inspector, the purchase and sale of the yacht qualifies as an economic activity as the appellant purchased the yacht for trading purposes. According to the inspector, even for occasional economic activities, the appellant is liable for VAT because the appellant was already a taxable person for VAT.
The appellant on the other hand argues that there is no economic activity, so the supply of the yacht falls is not a transaction that falls within the scope of VAT. However, if this is incorrect, the appellant argues that the margin scheme applies. Under EU case law, there can also be a reseller if it is an incidental transaction, the appellant argues. The appellant also refers to the judgment of the District Court of The Hague of February 7, 2008.
The court considers the purchase and sale of the yacht by the appellant as an economic activity. In respect of the margin scheme, the court agrees with the appellant. The court notes that the interpretation advocated by the inspector of the concept of a reseller, specifically the limitation stated in the legislative history that “an entrepreneur who incidentally supplies a used good is not to be considered a reseller” and the condition that “every entrepreneur who trades this type of goods with some regularity in his business is to be considered a reseller,” are not, or at least not explicitly, found in the EU VAT Directive.
Source: kelvinhulsebos.nl
