Case C‑209/14

NLB Leasing d.o.o.

v

Republika Slovenija

(Request for a preliminary ruling from the Vrhovno sodišče Republike Slovenije)

‛Reference for a preliminary ruling — VAT — Directive 2006/112/EC — Supply of goods or services — Lease agreement — Return of immovable property that is the subject matter of a lease agreement to the lessor — Concept of ‘cancellation, refusal or total or partial non-payment’ — Lessor’s right to a reduction of the taxable amount — Double taxation — Separate supplies — Principle of fiscal neutrality’

Summary — Judgment of the Court (Second Chamber), 2 July 2015

1. Harmonisation of fiscal legislation — Common system of value added tax — Taxable transactions — Acquisition of capital goods — Concept — Conclusion into lease agreement relating to immovable property — Included — Conditions

   (Council Directive 2006/112, Arts 2(1), 14 and 24(1))

2. Harmonisation of fiscal legislation — Common system of value added tax — Taxable amount — Reduced in the case of cancellation, refusal or reduction of the price — Taxable person having in fact received all the payments in consideration for the service supplied or where, without refusing or cancelling the agreement, the recipient of that service is no longer liable to pay the taxable person the agreed price — No reduction

   (Council Directive 2006/112, Art. 90(1))

3. Harmonisation of fiscal legislation — Common system of value added tax — Principle of fiscal neutrality — Leasing service relating to immovable property and the sale of that property to a person who is a third party to the lease agreement —Separate taxation for value added tax purposes — Lawfulness — Conditions — Verification a matter for the national court

   (Council Directive 2006/112, Art. 1(2))

1.  Articles 2(1), 14 and 24(1) of Directive 2006/112 on the common system of value added tax must be interpreted as meaning that where a lease agreement relating to immovable property provides either that ownership of that property is to be transferred to the lessee on the expiry of that agreement or that all the essential powers attaching to ownership of that property are to be enjoyed by the lessee and, in particular, substantially all the rewards and risks incidental to legal ownership of that property are transferred to the lessee and the present value of the amount of the lease payments is practically identical to the market value of the property, the transaction resulting from that agreement must be treated as an acquisition of capital goods.

   (see para. 32, operative part 1)

2.  Article 90(1) of Directive 2006/112 on the common system of value added tax must be interpreted as not permitting a taxable person to reduce the taxable amount where that person has in fact received all the payments in consideration for the service which he provided or where, without the agreement having been refused or cancelled, the recipient of that service is no longer liable to the taxable person for payment of the agreed price.

   (see para. 38, operative part 2)

3.  The principle of fiscal neutrality must be interpreted as not precluding, first, a leasing service relating to immovable property and, second, the sale of that property to a third party (to the lease agreement), being taxed separately for value added tax purposes, where those transactions cannot be regarded as forming a single supply, which is a matter for the national court to determine.

   (see para. 44, operative part 3)

Case C‑209/14

NLB Leasing d.o.o.

v

Republika Slovenija

(Request for a preliminary ruling from the Vrhovno sodišče Republike Slovenije)

‛Reference for a preliminary ruling — VAT — Directive 2006/112/EC — Supply of goods or services — Lease agreement — Return of immovable property that is the subject matter of a lease agreement to the lessor — Concept of ‘cancellation, refusal or total or partial non-payment’ — Lessor’s right to a reduction of the taxable amount — Double taxation — Separate supplies — Principle of fiscal neutrality’

Summary — Judgment of the Court (Second Chamber), 2 July 2015

1. Harmonisation of fiscal legislation — Common system of value added tax — Taxable transactions — Acquisition of capital goods — Concept — Conclusion into lease agreement relating to immovable property — Included — Conditions

   (Council Directive 2006/112, Arts 2(1), 14 and 24(1))

2. Harmonisation of fiscal legislation — Common system of value added tax — Taxable amount — Reduced in the case of cancellation, refusal or reduction of the price — Taxable person having in fact received all the payments in consideration for the service supplied or where, without refusing or cancelling the agreement, the recipient of that service is no longer liable to pay the taxable person the agreed price — No reduction

   (Council Directive 2006/112, Art. 90(1))

3. Harmonisation of fiscal legislation — Common system of value added tax — Principle of fiscal neutrality — Leasing service relating to immovable property and the sale of that property to a person who is a third party to the lease agreement —Separate taxation for value added tax purposes — Lawfulness — Conditions — Verification a matter for the national court

   (Council Directive 2006/112, Art. 1(2))

1.  Articles 2(1), 14 and 24(1) of Directive 2006/112 on the common system of value added tax must be interpreted as meaning that where a lease agreement relating to immovable property provides either that ownership of that property is to be transferred to the lessee on the expiry of that agreement or that all the essential powers attaching to ownership of that property are to be enjoyed by the lessee and, in particular, substantially all the rewards and risks incidental to legal ownership of that property are transferred to the lessee and the present value of the amount of the lease payments is practically identical to the market value of the property, the transaction resulting from that agreement must be treated as an acquisition of capital goods.

   (see para. 32, operative part 1)

2.  Article 90(1) of Directive 2006/112 on the common system of value added tax must be interpreted as not permitting a taxable person to reduce the taxable amount where that person has in fact received all the payments in consideration for the service which he provided or where, without the agreement having been refused or cancelled, the recipient of that service is no longer liable to the taxable person for payment of the agreed price.

   (see para. 38, operative part 2)

3.  The principle of fiscal neutrality must be interpreted as not precluding, first, a leasing service relating to immovable property and, second, the sale of that property to a third party (to the lease agreement), being taxed separately for value added tax purposes, where those transactions cannot be regarded as forming a single supply, which is a matter for the national court to determine.

   (see para. 44, operative part 3)