Case C-326/11

J.J. Komen en Zonen Beheer Heerhugowaard BV

v

Staatssecretaris van Financiën

(Reference for a preliminary ruling from the Hoge Raad der Nederlanden)

‛Sixth VAT Directive — Article 13B(g), read in conjunction with Article 4(3)(a) — Supply of buildings and land upon which they stand — Supply of a building undergoing work with the view to the creation of a new building by transformation — Continuation and completion of the work by the purchaser after the supply — Exemption from VAT’

Summary of the Judgment

1. Harmonisation of fiscal legislation — Common system of value added tax — Taxable transactions — Criteria for assessment — Intention of the parties concerning the liability of a transaction to tax — Obligation to carry out an overall assessment of the transaction concerned

2. European Union law — Principles — Prohibition of abuse of rights

3. Harmonisation of fiscal legislation — Common system of value added tax — Exemptions provided for in the Sixth Directive — Exemption for the supply of buildings and the land on which they stand — Scope — Supply of immovable property consisting of a plot of land and an old building undergoing transformation into a new building — Old building having undergone only partial demolition work and being in part still used — Included

   (Council Directive 77/388, Art. 4(3)(a) and 13B(g))

1.  The declared intention of the parties concerning the value added tax liability of a transaction must be taken into consideration in the course of an overall assessment of the circumstances of a transaction, provided that it is supported by objective evidence. That evidence includes the extent to which the transformation work carried out by the vendor had advanced at the time of supply and, as appropriate, the use of the immovable property at issue on the same date.

   (see paras 33, 34)

2.  See the text of the decision.

   (see para. 35)

3.  Article 13B(g) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, read in conjunction with Article 4(3)(a) of that directive, must be interpreted as meaning that the exemption from value added tax provided for in that first provision covers a supply of immovable property consisting of a plot of land and an old building undergoing transformation into a new building, where, at the time of that supply, the old building had undergone only partial demolition work and was, at least in part, still used as such.

   (see para. 39, operative part)

Case C-326/11

J.J. Komen en Zonen Beheer Heerhugowaard BV

v

Staatssecretaris van Financiën

(Reference for a preliminary ruling from the Hoge Raad der Nederlanden)

‛Sixth VAT Directive — Article 13B(g), read in conjunction with Article 4(3)(a) — Supply of buildings and land upon which they stand — Supply of a building undergoing work with the view to the creation of a new building by transformation — Continuation and completion of the work by the purchaser after the supply — Exemption from VAT’

Summary of the Judgment

1. Harmonisation of fiscal legislation — Common system of value added tax — Taxable transactions — Criteria for assessment — Intention of the parties concerning the liability of a transaction to tax — Obligation to carry out an overall assessment of the transaction concerned

2. European Union law — Principles — Prohibition of abuse of rights

3. Harmonisation of fiscal legislation — Common system of value added tax — Exemptions provided for in the Sixth Directive — Exemption for the supply of buildings and the land on which they stand — Scope — Supply of immovable property consisting of a plot of land and an old building undergoing transformation into a new building — Old building having undergone only partial demolition work and being in part still used — Included

   (Council Directive 77/388, Art. 4(3)(a) and 13B(g))

1.  The declared intention of the parties concerning the value added tax liability of a transaction must be taken into consideration in the course of an overall assessment of the circumstances of a transaction, provided that it is supported by objective evidence. That evidence includes the extent to which the transformation work carried out by the vendor had advanced at the time of supply and, as appropriate, the use of the immovable property at issue on the same date.

   (see paras 33, 34)

2.  See the text of the decision.

   (see para. 35)

3.  Article 13B(g) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, read in conjunction with Article 4(3)(a) of that directive, must be interpreted as meaning that the exemption from value added tax provided for in that first provision covers a supply of immovable property consisting of a plot of land and an old building undergoing transformation into a new building, where, at the time of that supply, the old building had undergone only partial demolition work and was, at least in part, still used as such.

   (see para. 39, operative part)