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Tax & Financial Standards New Judgments of the ECJ For May 2019

31.05.2019

Tax & Financial Standards New Judgments of the ECJ For May 2019

С-133/18 of 2 May 2019

Refund of VAT - Request for additional information by the Member State of refund - Information requested to be provided to the Member State of refund within one month of the date on which the request reaches the person to whom it is addressed - Legal nature of time limit and consequences of failure to comply

Key aspects of the decision in the economic range:

Definition of detailed rules for the refund of value added tax to taxable persons not established in the Member State of refund but established in another Member State.

A time-limit, which suggests that in excess of that period or in the absence of response the taxpayer loses the ability to eliminate the irregularities in its application for refund by submitting directly before national courts additional information that may prove the existence of his right to VAT refund.

Proceedings between a company established in Germany and the Minister for Public Action and Accounts, France) concerning the decision of the latter to reject the company’s claim for the refund of a VAT credit.

С-224/18 of 2 May 2019

Common system of value added tax - Chargeable event and chargeability of the tax - Time of the supply of the services - Construction and installation work - Taking into account the time of the acceptance of the work stipulated in the contract for the supply of services

Key aspects of the decision in the economic range:

Date of chargeability of VAT due.

Member State providing that VAT is to become chargeable on expiry of a time limit running from the day when the service was supplied, provided, first, that the formality of acceptance was stipulated by the parties in the contract that binds them according to contractual terms reflecting the economic and commercial realities in the field in which the service is supplied and, second, that that formality constitutes the actual completion of the service and determines the amount of consideration due.

Concepts of "tax event" and "chargeability".

Proceedings concerning an individual interpretation concerning the date of chargeability of value added tax for the performance of supplies of construction or installation services.

С-225/18 of 2 May 2019

Value added tax - Deduction of input tax - Exclusion from the right to deduct - Purchase of overnight accommodation and catering services - Standstill clause - Accession to the European Union

Key aspects of the decision in the economic range:

Right to deduct VAT paid on the purchase of overnight accommodation and catering services, introduced prior to the accession to the European Union and maintained after that accession.

National legislation which provides for the exclusion from the right to deduct VAT paid on the purchase of overnight accommodation and catering services, that exclusion having been introduced before the accession of the Member State concerned to the European Union and maintained thereafter and which means that a taxable person, who does not provide tourism services, is deprived of the right to deduct VAT.

Proceedings between a parent company of a group of companies active, inter alia, in the fuel and lubricants sector, and Minister for Finance, concerning a tax ruling by which the Minister for Finance refused the right to deduct value added tax paid by it on the purchase of overnight accommodation and catering services which that company resells and, therefore, re-invoices to other VAT taxable persons.

С-265/18 of 2 May 2019

VAT exemption for small businesses with an annual turnover below a certain threshold — Simultaneous delivery of two immovables with one deal — Passing above the annual turnover threshold due to the sale price of one of the two items — Obligation to deposit the entire value added tax on the transaction

Key aspects of the decision in the economic range:

Common system of the value added tax.

Special scheme for small businesses.

A taxable person liable to pay tax on the value of a full supply, taking account of the value of the two goods which are the subject of that supply, even if the taking into account of the value of one of those items would not result in the annual threshold being exceeded.

Proceedings between State Tax Inspection and Mrs J concerning the refusal to grant her exemption from VAT in the context of an economic operation relating to the supply of a house and the site on which it was built.

С-598/17 of 2 May 2019

Free movement of capital — Obligations of national courts — Existing aid and new aid — Refund of dividends tax — Scheme widened to companies established outside the Member State concerned

Key aspects of the decision in the economic range:

Possibility for national courts to assess the detailed rules of a system of aid in light of provisions of the FEU-Treaty.

New system of aid, regarded as a resulting from an alteration to existing aid.

A condition, which is necessary for the attainment of the objective and functioning of that aid scheme, without adversely affecting the division of competence between the Commission and the national courts in the matter of State aid.

A residence condition for the exemption from corporation tax for public undertakings, which is a necessary condition for the achievement of the objective and functioning of that aid scheme.

Proceedings concerning the refund of dividend tax withheld by the Netherlands tax administration.

С-694/17 of 2 May 2019

Jurisdiction and the recognition and enforcement of judgments in civil and commercial matters — Consumer credit agreement— Maximum amount of credit — Concept of "consumer"

Key aspects of the decision in the economic range:

Jurisdiction over consumer contracts.

Interpretation of the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

Rules that determine which court has jurisdiction to hear a case in civil and commercial matters, in particular, in respect of a contract between a trader or professional and a person acting outside his trade or profession.

Concept of "consumer".

Proceedings for the repayment of loan.

С-25/18 of 8 May 2019

Exclusive jurisdiction in proceedings which have as their object the validity of decisions of organs of companies or other legal persons or associations of natural or legal persons - Action for payment of a contribution for the maintenance of a property on the basis of a resolution of an association of property owners without legal personality - Decision of the general meeting of the owners of property in a building - Obligation of the owners to pay annual financial contributions to the budget of the association of property owners as determined by that decision - Concepts of ‘matters relating to a contract’ and "services"

Key aspects of the decision in the economic range:

Special jurisdiction in matters relating to contract.

Which national court has international jurisdiction where an association of property owners has brought an action seeking to enforce payment of contributions for the maintenance of a property, but the defaulting property owners are domiciled in another Member State?

What is the legal nature of the obligations arising from a decision made collectively by a group which does not have legal personality, such as a general meeting of the owners of apartments in an apartment block?

Concepts of ‘matters relating to a contract’ and "services".

Dispute concerning the failure to pay annual financial contributions to the budget of the association of property owners relating to an apartment building.

С-127/18 of 8 May 2019

Common system of value added tax - Total or partial non-payment, by the debtor, of a sum due to the taxable person in respect of a transaction subject to VAT - Taxable amount – Reduction - Principles of fiscal neutrality and proportionality

Key aspects of the decision in the economic range:

National legislation which provides that a taxable person cannot correct the VAT taxable amount, in the case of total or partial non-payment, by its debtor, of a sum due in respect of a transaction subject to that tax, if the debtor is no longer a taxable person for the purposes of VAT.

Conditions which for certain cases exclude a reduction of the taxable amount in the event of total or partial non-payment of the price.

Proceedings between a company and the Appellate Finance Directorate concerning the latter’s refusal to grant the company an adjustment of the amount of value added tax paid in respect of unpaid debts considered to be irrecoverable as a result of the debtor’s insolvency.

С-194/18 of 8 May 2019

Transfer of undertakings — Safeguarding of employees’ rights in the event of transfers of undertakings — Criteria for assessment of the transfer — Transfer of clients — Transfer of all the financial services of a bank, excluding staff, to a stock brokering company

Key aspects of the decision in the economic range:

Presence of a transfer of an undertaking or business.

A legal transfer of an undertaking or of part of an undertaking after the first respondent ceased to engage in business as a stock-exchange intermediary, the decision whether provision of such services was to be entrusted to the second defendant was, ultimately, a matter for the clients.

Protection of employees in the event of a change of employer, in particular, ensurement that their rights are safeguarded.

Proceedings concerning the lawfulness of the termination of the former’s employment contract.

С-566/17 of 8 May 2019

Principle of fiscal neutrality — Taxable person carrying out both economic and non-economic activities — Goods and services used for the purposes of economic and non-economic activities — Absence of national rules on criteria for apportionment of input tax — Principle of legality of taxation

Key aspects of the decision in the economic range:

Taxable persons in respect of the activities or transactions in which they engage as public authorities.

National practice according to which a taxable person may deduct fully in the framework of joint expenses input VAT charged, because there were no provisions in the national legal order laying down criteria or methods of calculation of the deductible share of input VAT incurred on supplies used indissociably both for the purpose of a taxable person’s economic and non-economic activities.

Proceedings concerning a request for mandatory instructions for interpretation of the tax law related to the right to deduct value added tax incurred on goods and services used for the purposes economic and non-economic activities by a municipal association.

С-568/17 of 8 May 2019

Provision of services — Place of taxable transactions — Tax link — Interactive sessions with erotic character on camera, streamed live on the internet — Place where the services are physically carried out

Key aspects of the decision in the economic range:

Common system of the value added tax.

Supply of services.

Cross-border transactions in respect of services.

Criteria for determination of tax jurisdiction.

Entertainment activity.

Interactive sessions with erotic character on camera, streamed live on the internet.

Place where the services are physically carried out.

Proceedings concerning payment of value added tax for providing interactive sessions with erotic character on camera, streamed live on the internet.

С-712/17 of 8 May 2019

Value added tax - Fictitious transactions - Impossibility of deducting the tax - Obligation on the issuer of an invoice to pay the VAT indicated thereon - Fine in an amount equal to the amount of the improperly deducted VAT — Whether compatible with the principles of VAT neutrality and proportionality

Key aspects of the decision in the economic range:

National legislation which excludes the right to deduct VAT relating to fictitious transactions while requiring the persons who enter VAT on an invoice to pay that tax, including in respect of a fictitious transaction.

National law under which the unlawful deduction of VAT is penalised by a fine equal to the amount of the deduction made.

Occurrence of tax liability through the issue of an invoice.

Additional penalty equal to the full amount of the refused deduction.

Proceedings concerning a revised assessment to tax to which a company was made subject, establishing a tax liability for additional value added tax, together with interest and penalties.

С-55/18 of 14 May 2019

Organisation of working time - Measures to encourage improvements in the safety and health of workers at work - Daily rest and weekly rest - Maximum weekly working time - Obligation for undertakings to set up a system to measure daily working time

Key aspects of the decision in the economic range:

Social policy.

Limits on working time.

Obligation for employers to introduce systems to measure the actual duration of the working day and working week.

Law of a Member State that, according to the interpretation given to it in national case-law, does not require employers to set up a system enabling the duration of time worked each day by each worker to be measured.

Proceedings between CCOO (Workers’ Statute) and D Bank concerning the lack of a system for recording the time worked each day by the workers employed by the latter.

С-235/18 of 15 May 2019

Value added tax— Exemptions of other activities — Fuel cards — Concepts of "supply of goods" and "granting and negotiation of credit"

Key aspects of the decision in the economic range:

A complex transaction the main objective of which is the supply of fuel, in respect of which it is possible to recover the VAT paid.

Transactions consisting in the provision of fuel cards and in negotiating, financing and accounting for the purchase of fuel using those cards.

A service granted credit which is exempt from VAT.

Concepts of "supply of goods" and "granting and negotiation of credit".

Proceedings between V and the Director of the Tax Chamber concerning the latter’s refusal to reimburse V the value added tax relating to fuel purchase transactions carried out by means of fuel cards.

 


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