- Date of the lodging of the application initiating proceedings: 10/06/2025
- Source of the question referred for a preliminary ruling: Verwaltungsgerichtshof – Austria
Summary
- Background of the Case: The case involves an Austrian entrepreneur who transferred rental properties from his sole proprietorship to a company he established, where he is the sole shareholder. The tax authority contested whether this constituted a taxable “supply of goods” and demanded a revision of previously claimed VAT deductions.
- Legal Questions Raised: The Austrian court seeks clarification from the CJEU on whether the transfer of properties to the company qualifies as a taxable supply under Article 2(1)(a) of the VAT Directive, and the implications for VAT deductions.
- Additional Inquiries: The court also questions if the transaction results in the withdrawal of goods from business use under Article 16 and whether Article 19 restricts national laws that treat transfers of business assets differently based on restructuring criteria.
- Direct Effect Inquiry: The court asks if Article 19 of the VAT Directive has direct effect, enabling taxpayers to invoke the principle of non-supply against the tax authorities, especially regarding pre-EU accession national laws.
- Cited Jurisprudence: The resolution references multiple ECJ cases that may inform the interpretation of the VAT Directive and its application in this context, emphasizing the complexity of VAT treatment for intra-group transfers and asset management.
Articles in the EU VAT Directive
Article 2(1)(a), 16 and 19
Article 2 (Taxable transaction)
1. The following transactions shall be subject to VAT:
(a) the supply of goods for consideration within the territory of a
Member State by a taxable person acting as such;
Article 16 (Supply of goods – Deemed taxable transaction)
The application by a taxable person of goods forming part of his business assets for his private use or for that of his staff, or their disposal free of charge or, more generally, their application for purposes other than those of his business, shall be treated as a supply of goods for consideration, where the VAT on those goods or the component parts thereof was wholly or partly deductible.
However, the application of goods for business use as samples or as gifts of small value shall not be treated as a supply of goods for consideration.
Article 19 (Transfer of going concern)
In the event of a transfer, whether for consideration or not or as a contribution to a company, of a totality of assets or part thereof, Member States may consider that no supply of goods has taken place and that the person to whom the goods are transferred is to be treated as the successor to the transferor.
Member States may, in cases where the recipient is not wholly liable to tax, take the measures necessary to prevent distortion of competition. They may also adopt any measures needed to prevent tax evasion or avoidance through the use of this Article.
Facts & background
- Transfer of Properties: In 2007, an Austrian entrepreneur transferred rental properties from his sole proprietorship to his newly established company, where he is the sole shareholder, without issuing new shares.
- Tax Authority Dispute: The national tax authority argued that this transaction did not constitute a “supply of goods for consideration” and demanded a revision of the entrepreneur’s previously claimed VAT deductions.
- Court’s Request for Clarification: The Austrian court has referred the case to the CJEU to clarify the application of Articles 2, 16, and 19 of the VAT Directive 2006/112 in relation to the transfer and VAT treatment.
Questions
1. Must Article 2(1)(a) of Council Directive 2006/122/EC of Council of 28 November 2006 on the common system of value added tax must be interpreted as meaning that the contribution of built-up immovable property by a taxable person who has used those properties to date by selling them in which this transaction (with the right to deduct the VAT) in a company of which he is liable to VAT, sole shareholder (so that this contribution does not lead to the granting of additional shares), as a supply of goods for consideration under consideration of the is to be regarded as a title?
2. If the answer to the first question is in the negative: The first paragraph of Article 16 of the VAT Directive must be interpreted as meaning that that the act referred to in the first question has the effect of contribution prior by a taxable person to his business goods which he provides free of charge or, more specifically, in the general, for purposes other than those of the business?
3. Does Article 19 of the VAT Directive preclude a national provision which prohibits the transfer of all or part of the a totality of assets (companies or business units) only in the event of a restructuring (of which there is a only exists if that capital is considered to be legislation on profit tax is used to treat certain types of revenue) as if there were no delivery of goods?
4. Does Article 19 of the VAT Directive have direct effect, so that a taxable person may be the competent tax authority on the principle of non-supply national legislature may rely on the fact that, before the accession of the Member States, the Member State to the European Union has introduced a scheme and which has since been applied only to specific cases of but not to the business assets that (according to the tax on profits) is used to generate income from the rental and leasing?
Source
ECJ cases referred to
C-243/23; C-374/19; C-787/18; C-204/13; C-280/10; C-241/23; C-442/01; C-98/21; C-36/16; C-207/23; C-444/10; C-497/01; C-17/18; C-108/14 and C-109/14; C-226/07; C-621/10 and C-129/11; C-488/18; C-416/17
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