According to the AG, clinker paving of the car park without site lighting does not qualify as a building
- Advocate General Ettema determined that clinker paving of a car park without site lighting does not meet the definition of a building, leading to the conclusion that the transfer of apartment rights is subject to VAT.
- The Arnhem-Leeuwarden Court of Appeal had previously ruled that the absence of site lighting on most plots, except for Plot 8, means that those plots do not qualify as built-up land, hence the VAT applicability.
- Ettema’s analysis highlighted that the clinker paving is not permanently affixed to the ground, being loose on a sand bed, and that legislative references pertain to structures rather than buildings, recommending the Supreme Court dismiss X BV’s appeal.
Source Taxlive
- The case concerns whether six plots with a parking area qualify as undeveloped land and thus as building land under Dutch VAT law.
- The court ruled that paving, drainage, and lighting on the plots do not form a building as they are not permanently attached to the ground, except for plot 8.
- The taxpayer appealed, but all complaints were dismissed except for a partially valid reasoning complaint, which did not lead to annulment.
- In 2018, the taxpayer bought a plot with a paved parking area, later split into six plots intended for housing.
- The tax inspector classified these plots as building land, subject to VAT, while the taxpayer argued they were developed land due to existing structures.
- The court initially sided with the taxpayer, but the Court of Appeal disagreed, except for plot 8, which was considered developed land based on the Real Estate Decision 2023.
- The taxpayer’s appeal included four complaints, arguing the paving should be considered a building and that the court should have considered the Real Estate Decision 2013.
- The Secretary of State argued that both national and EU laws require a structure to be fixed to the ground to be considered a building.
- The core issue is whether the plots are undeveloped land, which would make them building land subject to VAT.
- EU case law requires a structure to be fixed to the ground to qualify as a building.
- The Court of Appeal found that loose brick paving on sand is not fixed to the ground and does not constitute a building under VAT regulations.
- The taxpayer’s argument that similar constructions were considered buildings misinterprets legislative intent.
- The court’s decision that loose paving does not meet the fixed to ground requirement is legally sound.
Source: uitspraken.rechtspraak.nl
Note that this post was (partially) written with the help of AI. It is always useful to review the original source material, and where needed to obtain (local) advice from a specialist.
