Keywords
Summary

Keywords

1. Tax provisions - Harmonisation of laws - Turnover taxes - Common system of value added tax - Supply of goods - Transfer of the power to dispose of tangible property - Open to Member States to treat certain rights in rem in immovable property as tangible property - Exercise of that option subject to the condition that the price of the right in rem is at least equal to the economic value of the property concerned - Whether permissible

(Council Directive 77/388, Art. 5(3)(b))

2. Tax provisions - Harmonisation of laws - Turnover taxes - Common system of value added tax - Exemptions provided for by the Sixth Directive - Exemption for the letting and leasing of immovable property - Grant of usufructuary right, for a limited period and for consideration, treated as leasing and letting of immovable property - Whether permissible

(Council Directive 77/388, Art. 13B(b) and C(a))

Summary

1. On a proper construction of Article 5(3)(b) of the Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover tax, it does not preclude adoption of a national provision, whereby classification as a supply of goods of the grant, transfer, modification, waiver or termination of rights in rem in immovable property is made subject to the condition that the total consideration, plus turnover tax, must amount to at least the economic value of the immovable property to which those rights in rem relate. 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. Consequently, such a condition is not contrary to the provisions of Article 5(3) of the Sixth Directive.

( see paras 35-36, 38, and operative part 1 )

2. On a proper construction of Article 13B(b) and C(a) of the Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover tax, it does not preclude adoption of a national provision which, for the purposes of the application of the exemption from value added tax, allows the grant, for an agreed period and for payment, of a right in rem entitling the holder to use immovable property, such as a usufructuary right, to be treated as the leasing or letting of immovable property.

Observance of the principle of the neutrality of VAT and the requirement for a consistent application of the provisions of the Sixth Directive, in particular the proper, simple and uniform application of the exemptions provided for, entail treating the grant of such a right like leasing and letting, for the purposes of the application of Article 13B(b) and C(a). Treating such a form of use of immovable property as letting prevents any abusive creation of a right to deduct input tax on immovable property, which is an aim expressly provided for by Article 13 of the Sixth Directive.

That interpretation is not affected by the fact that in the civil law of many Member States usufruct has characteristics which distinguish it from leasing or letting. The particularities in question, arising from the fact that these legal institutions belong to distinct legal categories, are secondary in relation to the fact that, economically, a right such as the usufructuary right under consideration and leasing and letting present an essential common characteristic, which lies in conferring on the person concerned, for an agreed period and for payment, the right to occupy property as if that person were the owner and to exclude any other person from enjoyment of such a right.

( see paras 54-59 and operative part 2 )