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01.06.2023

Tax & Financial Standards New Judgments of the ECJ For May 2023

Tax & Financial Standards New Judgments of the ECJ For May 2023

Tax&Financial Standards (T&FSt) – International Financial Reporting Standards, Date or entry into force: 1.01.2023 (consolidated version), in 4 languages - Bulgarian, English, German and French

New judgments

Value added tax – Failure to issue a fiscal cash register receipt – Charter of Fundamental Rights of the European Union – Principle ne bis in idem – Cumulation of administrative penalties of a criminal nature for the same act – Proportionality of penalties – Right to an effective remedy – Scope of judicial review relating to the provisional enforcement of a penalty

Key aspects of the decision in the economic range:

National legislation under which a financial penalty and a measure involving sealing of business premises may be imposed on a taxpayer for one and the same offence relating to a tax obligation at the end of separate and autonomous procedures, where those measures are liable to challenge before different courts and where that legislation does not ensure coordination of the procedures enabling the additional disadvantage associated with the cumulation of those measures to be reduced to what is strictly necessary and does not ensure that the severity of all penalties imposed is commensurate with the seriousness of the offence concerned.

Proceedings concerning a sealing measure for business premises in which MV had sold a packet of cigarettes without issuing a fiscal cash register receipt.

Common system of value added tax – Adjustment of deductions of input VAT – Goods written off – Subsequent sale as waste – Destruction or disposal duly proved or confirmed – Concepts of „destruction“ and „loss“

Key aspects of the decision in the economic range:

Provisions of national law which provide for the adjustment of input VAT deducted upon acquisition of goods where they have been written off, the taxable person having considered that they had become unusable in the course of his or her usual economic activities and where, subsequently, those goods were either sold subject to VAT or destroyed.

Concepts of „destruction“ and „loss“.

Proceedings concerning the decision of the Inspector General of Taxes rejecting a request for reimbursement of sums paid in respect of adjustments of initial value added tax deductions, which had been made because various capital goods and stock items were written.

Value added tax (VAT) — Exceptions to the exemption — Letting of permanently installed equipment and machinery in the context of the leasing of an agricultural building — Scope of the exception to the exemption

Key aspects of the decision in the economic range:

VAT. Exemption of transactions involving the leasing or letting of immovable property. Letting of a specially equipped turkey rearing shed. Equipment and machinery made available as a supply ancillary to the leasing of an agricultural building. Single supply.

Proceedings concerning the imposition of value added tax on the provision of equipment and machinery in the context of the leasing of an agricultural building.

Organisation of working time — Charter of Fundamental Rights of the European Union — Equal treatment — Health and safety of night workers at work — Level of protection for night workers appropriate to the nature of their work — Public sector workers and private sector workers — Concept of „implementation of Union law“

Key aspects of the decision in the economic range:

Directive 2003/88 concerning certain aspects of the organisation of working time applies to public sector workers, such as firefighters, who are considered to be night workers, in so far as those workers carry out their activities under normal circumstances. The normal length of night work fixed at seven hours in the legislation of a Member State for workers in the private sector, is not applying to public sector workers, such as firefighters, if, in so far as the categories of workers concerned are in a comparable situation, that difference in treatment is based on an objective and reasonable criterion.

Concept of „implementation of Union law“.

15 sets of proceedings between civil servants of a district service of the Fire Safety and Civil Protection’ Directorate-General of the Ministry of the Interior and that directorate-general concerning the calculation of, and remuneration for, hours of night work carried out by those civil servants.

General system of value added tax - Exemption for the supply of services closely linked to welfare and social security work by bodies recognised by the Member State concerned as being devoted to social wellbeing - Supplies of services to a non-taxable person in a Member State other than the one where the supplier is established - Assessment of the nature of the service provision and the condition that the relevant organization is recognized as a charity – Concept of „supply of services closely linked to welfare and social security work by bodies recognised by the Member State concerned as being devoted to social wellbeing“ and „body recognised by a Member State as being devoted to social wellbeing“

Key aspects of the decision in the economic range:

Exemption from VAT. Supplies of social services to natural persons residing in a Member State other than the one in which the supplier has established its business may be exempted. In this regard, the fact that said supplier used a company established in that other Member State to contact its customers is irrelevant. Where a company supplies social services to natural persons residing in a Member State other than the one in which the same company has established its business, the nature of those supplies and the characteristics of that company must be considered according to the law of the Member State transposing the VAT Directive, in which the said company established its business activity. Body recognised as being devoted to social wellbeing. Member State concerned which recognises the body as being devoted to social wellbeing.

Concept of „supply of services closely linked to welfare and social security work by bodies recognised by the Member State concerned as being devoted to social wellbeing“ and „body recognised by a Member State as being devoted to social wellbeing“.

Dispute regarding a revision act for establishing value added tax liabilities.

Consumer protection — Right of withdrawal for off-premises contracts — Information requirements for the trader concerned — Failure of that trader to inform the consumer — Obligations of the consumer in the event of withdrawal — Withdrawal after the performance of the contract — Consequences

Key aspects of the decision in the economic range:

Directive 2011/83/EU on consumer rights exempts a consumer from any obligation to pay for performance provided pursuant to an off-premises contract, where the trader concerned did not provide him or her with the information and where the consumer exercised his or her right of withdrawal after the performance of that contract.

Proceedings between DC and HJ concerning payment for a service supplied to HJ, pursuant to a contract concluded off-premises, by an undertaking which had assigned all the rights arising under that contract to DC.

Statute of the Court of Justice of the European Union — Stay of the main proceedings by a national court which has submitted a request for a preliminary ruling to the Court of Justice under Article 267 TFEU — Possibility of a partial stay of proceedings

Key aspects of the decision in the economic range:

Statute of the Court of Justice of the European Union. A national court, which has made a request for a preliminary ruling from staying the main proceedings only with regard to the aspects of those proceedings that are likely to be affected by the Court’s response to that request. Procedural steps which are not such as to prevent the referring court from complying, in the main proceedings, with that order or that judgment.

Criminal proceedings for acts classified as corruption.

Value added tax — Margin scheme — End-of-life vehicles sold for parts — Concept of „second-hand goods“

Key aspects of the decision in the economic range:

Rules on VAT deduction and of the margin scheme. Definitively end-of-life motor vehicles acquired by an undertaking, intended to be sold ‘for parts’ without the parts having been removed are second-hand goods where, first, they still include parts which maintain the functionalities that they possessed when new so that they can be reused as such or after repair and, secondly, it is established that those vehicles remained in the same economic cycle because of that reuse of parts.

Concept of „second-hand goods“.

Proceedings, concerning the refusal of the Belgian tax authorities to apply the margin scheme in respect of certain vehicle sales.

Value added tax – Obligations to declare and pay VAT – Penalties laid down for the failure of a taxable person to comply with the obligations – Principles of proportionality and neutrality of VAT – Right to deduct VAT – Compatibility of penalties

Key aspects of the decision in the economic range:

Ensurement of the correct collection of VAT and prevention of evasion. The principles of proportionality and fiscal neutrality must be interpreted as not precluding national legislation pursuant to which the failure to comply with the obligation to declare and pay VAT to the Treasury is penalised by a flat-rate fine amounting to 20% of the amount of VAT which would have been due before subtracting deductible VAT.

Proceedings concerning a number of decisions adopted by the Belgian tax authorities imposing fines on a company for infringements of the rules governing value added tax.

 

April

 

Free movement of capital — Corporate income tax — Taxation of income from immovable property situated within the territory of a Member State — Difference in treatment between resident funds and non-resident funds — Exemption for resident funds only — Taking into account of the tax system of investor — Need to preserve the coherence of the national tax system — Need to preserve a balanced distribution of the power of taxation between Member States

Key aspects of the decision in the economic range:

Balanced distribution of taxing power between Member States. Legislation of a Member State which makes non-resident specialised property funds partially liable to corporate income tax in respect of the income from property which they receive in the territory of that Member State, whereas resident specialised property funds are exempt from that tax. Restriction on the free movement of capital.

Proceedings between L and Tax Office concerning the liability of L to corporate income tax.

Value added tax – Taxable transactions – Economic activity – Supply of goods – Unlawful consumption of electricity – Principle of neutrality of VAT – Charging the consumer for compensation including the price of the electricity consumed – Taxable person – Sui generis entity mandated by municipalities – Principle of taxability of electricity distribution

Key aspects of the decision in the economic range:

Consequences of ‘electricity theft’ in terms of value added tax. Charging by the competent distribution network operator for illegally consumed electricity. Negligible scope of activities. The supply of electricity by a distribution network operator, even if involuntary and the result of unlawful conduct on the part of a third party, constitutes a supply of goods.

Proceedings concerning the payment of an invoice relating to an unlawful usage of electricity.