At issue is the value added tax treatment of the grant of a usufructuary right in respect of immovable property for a term of 10 years.
Operative part Keywords 1. Such a condition is consonant with the aim of the Sixth Directive to ensure that VAT is actually collected and in the proper way, notwithstanding the fact that this condition will rarely be fulfilled in practice.
One of the questions is whether a Member State may treat such a transaction as exempted leasing or letting of immovable property within the meaning of Article 13B b of the Sixth Directive. Relevant provisions of the Sixth Directive 2. Under Article 2 1 of the Sixth Directive the supply of goods or services effected for consideration by a taxable person acting as such is subject to value added tax.
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Three of the concepts referred to in Article 2 1 are defined in Articles 4, 5 and 6 of the Directive, namely the concepts of taxable person, supply of goods and supply of services. Under Article 4 1 taxable person means any person who independently carries out any economic activity specified in paragraph 2 thereof. Under Article 4 2 [t]he exploitation of tangible or intangible property for the purpose of obtaining income therefrom on a continuing basis shall also be considered an economic activity.
Article 5, which is the first provision of Title V Taxable hoge price, provides: 1. Member States may consider the following to be tangible property: a certain interests in immovable property; b rights in rem giving the holder thereof a right of user over immovable property; c shares or interests equivalent to shares giving the holder thereof de jure or de facto rights of ownership or possession over immovable property or part thereof.
According to Article 6 1 supply of services means any transaction which does not constitute a supply of goods within the meaning of Article 5.
Article 13 hoge price the Directive concerns domestic exemptions from VAT. Article 13A enumerates activities which are exempted in the public interest.
Article 13B contains a list of other exemptions. Article 13 C entitles Member States to grant taxpayers a right to opt for taxation in certain of the cases listed in Article 13B. It must be borne in mind that in some circumstances it may work to the advantage of a taxable person to opt for taxation of a supply in order to be able to reclaim the input tax incurred. The exemption at issue in the present case is Article 13B b which exempts from VAT the leasing or letting of immovable property.
The Member States may subject that exemption to conditions and certain transactions are excluded from its scope.
Article 13B b provides: B. Other exemptions Without prejudice to other Community provisions, Member States shall exempt the following under conditions which they shall lay down for the purpose of ensuring the correct and straightforward application of the exemptions and of preventing any possible evasion, avoidance or abuse Member States may apply further exclusions to hoge price scope of this exemption.
Article 13C provides for a related right to opt for taxation: C. Options Member States may allow taxpayers a right of option for taxation in cases of: a letting and leasing of immovable property; b Member States may restrict the scope of hoge price right of option and shall fix the details of its use.
In certain cases it might appear appropriate to authorise Member States to take or retain special measures derogating from the Directive in order to simplify the levying of tax or to avoid fraud or tax avoidance. Article 27 1 of the Sixth Directive therefore provides: The Council, acting unanimously on a proposal from the Commission, may authorise any Member State to introduce special measures for derogation from the provisions of this Directive, in order to simplify the procedure for charging the tax or to prevent certain types of tax evasion or avoidance.
The Netherlands legal background In hoge price Netherlands value added tax is governed by the Wet op de omzetbelasting Law on turnover taxhereinafter the Lawas amended. The present dispute centres essentially upon two amendments made to that Law by a Law of 18 December Those amendments were expressly designed to combat tax avoidance arrangements with regard to immovable property.
They were given retroactive effect from 6 p. For the purpose of the analysis it is perhaps best to set out in full the text of the two amended provisions. The newly-introduced passages are printed in italics. Other relevant provisions of the Law will be summarised. Article 1 a of the Law describes the scope of value added tax in terms almost identical to Article 2 1 of the Directive.
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Article 3 of the Law clarifies the concept of supplies of goods. Under Article 3 1 e a supply of goods consists for example in a transfer of goods as a result of which the goods in question leave the taxable person's business assets.
The first hoge price the two amended provisions which are in issue in the present case is Article 3 2 of the Law. It establishes a deemed supply of goods and is intended to make use of the possibility afforded by Article 5 3 of the Directive.
It provides in its amended version: 2. The grant, transfer, modification, waiver or hoge price of limited rights over immovable property, with the exception of mortgages and ground rents must also be viewed as a supply of goods, save where the sum paid therefor plus turnover tax amounts to less than the economic value of those rights. The economic value shall be not less than the cost price of the immovable property to which the right relates, including turnover tax, which would result if it were created by an independent third party at the time of the transaction.
Article 11 1 b as amended is the second contentious provision. It is intended to implement Article 13B b and 13C a of the Directive and provides: 1. The following are exempted from tax, subject to the conditions to be laid down by general administrative regulation The facts and the main proceedings At the material time in the appellant in the main proceedings was a housing association called Woningbouwvereniging Goed Wonen.
In it changed its legal form and became a foundation called Stichting Goed Wonen. Since that change has no bearing on the present case and in order to prevent confusion hoge price the distinct Stichting De Goede Woning introduced below I will refer to the housing association and the succeeding foundation simply as the appellant. In the course of the second trimester of three new-built housing complexes with dwellings designed for letting hereinafter the new houses were supplied to the appellant.
Opinion of the Advocate-General
By a further notarial act of the same hoge price, the appellant granted the Stichting a usufructuary right for a term of 10 years in respect of the new houses in return for a sum lower than the cost price of those houses. The act granting the usufructuary right hoge price also that the Stichting was to commission the appellant to - manage the buildings and carry out large and small-scale maintenance work or have the same carried out, - collect and administer the rents, issue receipts for rents received, conclude, modify and terminate agreements for the rental of the buildings and issue invoices in respect of rent increases, - carry out all such legal acts on behalf of the usufructuary in relation to the aforesaid management as the Stichting may deem appropriate.
- Здоровый человек, не достигший сорокалетнего возраста, обладает достаточно прочной защитной системой, чтобы естественным образом выдержать действие агента.
- Дети были бы - Увы, нет, - решил Арчи.
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In its tax declaration for the period opcionų prekybininkų forumai April to 30 June the appellant indicated the turnover tax for the grant of the usufructuary right to the Stichting HFL and offset the amount of the turnover tax charged to it in connection with the construction of the new houses HFL 1 On the basis of that declaration the appellant initially recouped HFL The setting-up of the Stichting and the grant of the usufructuary right may thus have been to the appellant's advantage in particular because under the law in force before the amendments it was able to deduct the input tax.
Presumably after the entry into force with retroactive effect of the amendments made by the law of 18 December the Netherlands tax authorities issued a supplementary assessment in the sum of HFL 1 corresponding to the amount coin cap xrp by the appellant as input tax.
The appellant lodged an objection against that supplementary assessment. The Netherlands authorities initially confirmed their decision. By hoge price of 14 February they however reduced the assessment to the sum of HFL which corresponds to the amount recouped by the appellant on the basis of the declaration.
By judgment of 20 May the Gerechtshof te Arnhem Regional Court of Appeal, Arnhem annulled the tax authorities' initial assessment but confirmed the assessment in its corrected form of 14 February The Gerechtshof held that the setting-up of the Stichting and the grant of the usufructuary right were of no relevance for VAT purposes and argued essentially as follows.
In the first place, the Stichting had to be assimilated to the appellant, because the role of the appellant in its relationship with the Stichting was so dominant.
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The grant of the usufructuary right was not therefore a transaction between two different taxable persons. The appellant lodged an appeal against that judgment before the Hoge Raad. The Hoge Raad appears to have no doubt about three issues. In the Hoge Raad's view the Gerechtshof was wrong in assimilating the appellant to the Stichting, because the legal transactions at issue resulted in the creation of a separate legal entity, in the form of a foundation, which was hoge price from the appellant.
However, the Gerechtshof had rightly held that there was no transfer of the right to dispose of the assets in question as owner within the meaning of Article 5 1 of the Sixth Directive and Article 3 1 e of the Law.
The Stichting obtained only a limited right which did not encompass the right to dispose freely of the houses in question. Finally, it was in the present case not open to the courts to question the retroactive effect of the Law of 19 December The Hoge Raad considers however that several of the appellant's arguments raise questions regarding the interpretation of the Sixth Directive.
Before the referring court the appellant maintained in substance, first, that Article 3 2 of the Law infringes Article 5 3 b of the Directive. In its view, the Netherlands legislature wrongly established a link between the amount of the consideration paid for the grant of a right in rem and the question whether that grant is to be regarded as a taxable supply. Secondly, before amending Article 3 2 of the Law the Netherlands should have hoge price authorisation pursuant to Article 27 of the Directive.
Thirdly, Article 11 1 b of the Law is contrary to Article 13B b and 13C a of the Directive in that it exempts from value added tax transactions such as the grant of an usufructuary right which cannot be regarded as leasing or letting of immovable property within the meaning of the Directive.
In the light of those arguments the Hoge Raad submitted the following questions for a preliminary ruling: 1.
Is Article hoge price 3 of the Sixth Directive to be interpreted as meaning that rights in rem entitling the holder thereof hoge price use immovable property may be treated by the automatinė akcijų pasirinkimo sandoris legislature as tangible property only if the remuneration agreed in respect of the grant, transfer, modification, waiver or termination of those rights is at least equivalent to the financial value of the immovable property concerned?
Written observations have been submitted by the Netherlands Government and the Commission. At the hearing the appellant, the Netherlands and German Governments, and the Commission were represented. Question 1: Article 5 3 of the Sixth Directive By its first question the referring court wishes to ascertain whether Article 5 3 b of the Sixth Directive must be interpreted as precluding a national provision such as Article 3 2 of the Law as amended which subjects the classification as supply of goods of the grant, transfer, modification, waiver or termination of rights in rem, with the exception of mortgages and ground rents, to the condition that the sum paid therefor plus turnover tax amounts at least to the economic value of the immovable property to which the rights in rem relate.
The appellant maintains that the amendment of Article 3 2 of the Law is incompatible with Article 5 3 b of the Directive. In its view the Directive allows the Member States only to select within the catalogue of rights in rem existing in their national legal order the rights which should be assimilated to tangible property.
It does not however allow them to differentiate on the basis of the sum paid for a transaction over such a right. The effect of the criterion chosen by the Netherlands is that depending on the sum paid a given right in rem is regarded as tangible property in some cases and not in others.
It follows that before amending Article 3 2 of the Law the Netherlands should have sought authorisation pursuant to Article 27 of the Hoge price. Neither at the moment of the grant of the usufructuary right nor when the amendments were adopted by the legislature did the Netherlands have such an authorisation.
The authorisation granted in came too late, allowed a derogation from a different provision of the Sixth Directive and was in any event never used by the Netherlands. The Netherlands Government and the Commission maintain - and I agree with them on this point - that a national provision such as Article 3 2 as amended is compatible with Article 5 3 b of the Sixth Directive. According to Article 5 1 of the Sixth Directive supply of goods means the transfer of the right to dispose of tangible property as owner.
The two key elements in the definition are that the supply must entail the transfer of the right to dispose of [the] property as owner and that the supply must concern tangible property. As regards the first element, the Court has held that supply of goods does not refer to the transfer of ownership in accordance with the procedures prescribed by the applicable national law but covers any transfer of tangible property by one party which empowers the other party actually to dispose of it as if he were the owner of the property.
As regards the second element, Article 5 3 b provides that the Member States may consider rights hoge price rem giving the holder thereof a right of user over immovable property to be tangible property. That provision was prompted by the existence in the private law of several Member States of limited rights in rem such as usufruct, emphyteusis and superficie which give the holder certain rights of economic utilisation over immovable property.
On a literal interpretation of Article 5 1 and 3 b Member States may consider only the transfer of the rights in rem mentioned in Article 5 3 b as a supply of goods within the meaning hoge price the directive. It follows however from Van Tiem that where a Member State has made use of the possibility provided best trend coins by Article 5 3 b to consider certain rights in rem to be tangible property, the term transfer in Article 5 1 must be interpreted as also covering the creation of such a right.
As regards the appellant's main argument that the Member States are not entitled to differentiate on the basis of the sum paid for a transaction over a given right, Article 5 3 b provides expressly that Member States may consider rights in rem giving the holder a right of user over immovable property as tangible property.
No hoge price in the Sixth Directive hoge price the discretion which the Member States enjoy under that provision to an express limitation.