Case C‑622/11

Staatssecretaris van Financiën

v

Pactor Vastgoed BV

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

‛Sixth VAT Directive — Articles 13C and 20 — Supply of immovable property — Right to opt for taxation — Right to deduction — Adjustment of deductions — Recovery of sums due following adjustment of a VAT deduction — Taxable person liable for payment — Taxable person other than the person who initially applied the deduction and who is extraneous to the taxed transaction which gave rise to the deduction’

Summary — Judgment of the Court (Second Chamber), 10 October 2013

1. Harmonisation of fiscal legislation — Common system of value added tax — Deduction of input tax — Adjustment of the initial deduction — Recovery of sums due following adjustment of a value added tax deduction — Supply of immovable property — Taxable person other than the person who initially applied the deduction and who is extraneous to the taxed transaction which gave rise to the deduction

   (Council Directive 77/388, Arts 13C, first para.(b) and second para., 20(1)(a) and (4) and 21(1)(a))

2. Harmonisation of fiscal legislation — Common system of value added tax — Deduction of input tax — Objective of the adjustment of the initial deduction

1.  Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, as amended by Directive 95/7, must be interpreted as precluding the recovery of amounts due following the adjustment of a value added tax deduction from a taxable person other than the person who applied that deduction.

   Indeed, the designation of the person liable for the amounts due following the adjustment of a value added tax deduction does not constitute a ‘detail’ within the meaning of the second paragraph of Article 13C and Article 20(1) of the Sixth Directive, but rather, as is apparent from Article 21 of that directive, a substantive rule of the common value added tax system established by that directive.

   In this respect, Article 20(1)(a) of the Sixth Directive must be interpreted as meaning that, in the event of adjustment of a value added tax deduction applied by a taxable person, the amounts due in that regard must be paid by that taxable person. A contrary interpretation would be incompatible with the objectives pursued regarding adjustment of deductions by that directive.

   In that context, the option of providing that a person, other than the taxable person, is to be held jointly and severally liable for payment of the tax, accorded to the Member States by Article 21(1)(a) of the Sixth Directive, cannot be interpreted as allowing them to impose a separate tax liability payable by that person.

   Moreover, in the event of successive supplies of an immovable property, the fact that one of the taxable persons concerned did not, at the time of the supply in which it has participated, comply with the rules governing the exercise of the right of option referred to in the second paragraph of Article 13C of the Sixth Directive cannot have the consequence of requiring that taxable person to pay the tax debt due following the adjustment of a value added tax deduction applied by another taxable person in relation to one of those supplies in respect of which the first taxable person is extraneous. If, in accordance with that provision, the Member States may restrict the scope of this right of option and fix the details of its use, they cannot, when exercising that option, impose on a taxable person obligations going beyond what is permitted by European Union value added tax law.

   Likewise, since, first, the supply of an immovable property, concluded between the supplier and a purchaser, was exempted from value added tax with retrospective effect and, secondly, the value added tax relating to that supply, paid and deducted by that purchaser, was cancelled, the latter does not obtain an ‘unjustified advantage’ within the meaning of Article 20(4) of the Sixth Directive. Accordingly, that purchaser cannot, on the basis of that provision, be held liable to pay the value added tax due following adjustment of a deduction applied by the supplier in connection with another transaction with which that purchaser is extraneous, namely the supplier’s initial acquisition of that immovable property.

   Decision 88/498 aims to ensure that, in the context of a supply of an immovable property, the value added tax relating to that supply is paid and deducted by one and the same taxable person, namely the purchaser of the property concerned.

   (see paras 32, 36, 37, 39, 40, 42, 44, 45, 47, operative part)

2.  See the text of the decision.

   (see para. 34)

Case C‑622/11

Staatssecretaris van Financiën

v

Pactor Vastgoed BV

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

‛Sixth VAT Directive — Articles 13C and 20 — Supply of immovable property — Right to opt for taxation — Right to deduction — Adjustment of deductions — Recovery of sums due following adjustment of a VAT deduction — Taxable person liable for payment — Taxable person other than the person who initially applied the deduction and who is extraneous to the taxed transaction which gave rise to the deduction’

Summary — Judgment of the Court (Second Chamber), 10 October 2013

1. Harmonisation of fiscal legislation — Common system of value added tax — Deduction of input tax — Adjustment of the initial deduction — Recovery of sums due following adjustment of a value added tax deduction — Supply of immovable property — Taxable person other than the person who initially applied the deduction and who is extraneous to the taxed transaction which gave rise to the deduction

   (Council Directive 77/388, Arts 13C, first para.(b) and second para., 20(1)(a) and (4) and 21(1)(a))

2. Harmonisation of fiscal legislation — Common system of value added tax — Deduction of input tax — Objective of the adjustment of the initial deduction

1.  Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, as amended by Directive 95/7, must be interpreted as precluding the recovery of amounts due following the adjustment of a value added tax deduction from a taxable person other than the person who applied that deduction.

   Indeed, the designation of the person liable for the amounts due following the adjustment of a value added tax deduction does not constitute a ‘detail’ within the meaning of the second paragraph of Article 13C and Article 20(1) of the Sixth Directive, but rather, as is apparent from Article 21 of that directive, a substantive rule of the common value added tax system established by that directive.

   In this respect, Article 20(1)(a) of the Sixth Directive must be interpreted as meaning that, in the event of adjustment of a value added tax deduction applied by a taxable person, the amounts due in that regard must be paid by that taxable person. A contrary interpretation would be incompatible with the objectives pursued regarding adjustment of deductions by that directive.

   In that context, the option of providing that a person, other than the taxable person, is to be held jointly and severally liable for payment of the tax, accorded to the Member States by Article 21(1)(a) of the Sixth Directive, cannot be interpreted as allowing them to impose a separate tax liability payable by that person.

   Moreover, in the event of successive supplies of an immovable property, the fact that one of the taxable persons concerned did not, at the time of the supply in which it has participated, comply with the rules governing the exercise of the right of option referred to in the second paragraph of Article 13C of the Sixth Directive cannot have the consequence of requiring that taxable person to pay the tax debt due following the adjustment of a value added tax deduction applied by another taxable person in relation to one of those supplies in respect of which the first taxable person is extraneous. If, in accordance with that provision, the Member States may restrict the scope of this right of option and fix the details of its use, they cannot, when exercising that option, impose on a taxable person obligations going beyond what is permitted by European Union value added tax law.

   Likewise, since, first, the supply of an immovable property, concluded between the supplier and a purchaser, was exempted from value added tax with retrospective effect and, secondly, the value added tax relating to that supply, paid and deducted by that purchaser, was cancelled, the latter does not obtain an ‘unjustified advantage’ within the meaning of Article 20(4) of the Sixth Directive. Accordingly, that purchaser cannot, on the basis of that provision, be held liable to pay the value added tax due following adjustment of a deduction applied by the supplier in connection with another transaction with which that purchaser is extraneous, namely the supplier’s initial acquisition of that immovable property.

   Decision 88/498 aims to ensure that, in the context of a supply of an immovable property, the value added tax relating to that supply is paid and deducted by one and the same taxable person, namely the purchaser of the property concerned.

   (see paras 32, 36, 37, 39, 40, 42, 44, 45, 47, operative part)

2.  See the text of the decision.

   (see para. 34)