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Tax & Financial Standards New Judgments of the ECJ For December 2018


Tax & Financial Standards New Judgments of the ECJ For December 2018

С-480/17 of 6 December 2018

Direct taxation - Income tax - Deductibility of contributions paid to a professional pension organization and to a private pension insurance - Exclusion for non-residents

Key aspects of the decision in the economic range:

Freedom of establishment.

Legislation of a Member State under which a non-resident taxpayer who in that Member State is subject to a reduced rate of tax on income tax may not deduct from the taxable amount of income tax the amount of the compulsory and supplementary contributions paid to a professional pension fund, and contributions paid for private pension insurance, whereas a resident taxpayer who is unlimitedly liable for income tax may deduct.

Proceedings concerning the refusal to take into account the contributions paid to a professional pension scheme and to a private pension insurance, as exceptional expenses, in order to reduce the tax in the context of a limited tax liability in Germany.

С-672/17 of 6 December 2018

Taxable amount – Reduction - Actions in the context of insolvency proceedings to recover VAT - Management of municipal public services - Principle of fiscal neutrality

Key aspects of the decision in the economic range:

Reduction of the taxable amount for VAT.

Tax, adjusted in the event of non-payment, before the purchaser of the goods or service, being a taxable person, has been notified of the cancellation of the tax for the purposes of rectifying the deduction initially made.

Proceedings brought by a company against the Tax and Customs Authority regarding the latter’s refusal to allow it to adjust the amount of value added tax paid in relation to unpaid debts considered to be unrecoverable due to the insolvency of the debtors.

С-385/17 of 13 December 2018

Organisation of working time - Right to paid annual leave - Legislation of a Member State under which collective agreements may provide for account to be taken of periods of short-time working when calculating remuneration to be paid in respect of annual leave - Temporal effects of judgments ruling on interpretation

Key aspects of the decision in the economic range:

Right to working conditions which respect his or her health, safety and dignity. Remuneration for annual leave. Consequences flowing from short-time work periods.

A national rule, contained in a collective agreement, which allows reductions in earnings due to short-time work to be taken into account for the purposes of calculating a worker’s entitlement to remuneration for annual leave.

General principle of legal certainty laid down by EU law and the principle of non-retroactivity whish require that the possibility of relying on the interpretation which the Court places.

Proceedings between an employee and a company concerning the calculation of remuneration for annual leave, namely the payment to which he is entitled in respect of his paid annual leave.

С-17/18 of 19 December 2018

Transfer of a totality of assets or part thereof — Exemption for lettings of immovable property — Rental contract concerning an immovable property used for commercial purposes and the movable property necessary for that use — Supply of services relating to that immovable property which gave rise to the deduction of VAT

Key aspects of the decision in the economic range:

A transaction, by which a building, which was used for commercial purposes is let with all the capital equipment and inventory items used for those purposes, when the lessee pursues those activities under the same name.

A supply of services that may be regarded as the "letting of immovable property" within the meaning of the VAT Directive, or a contract, treated as a supply of complex services.

Concepts of "Transfer of a totality of assets or part thereof", "leasing", "letting" and "letting of immovable property".

Criminal proceedings brought against a commercial company and its managers, for tax avoidance, on the ground that, after having deducted input value added tax (VAT) on works carried out in the immovable property used for their commercial activity, they did not adjust the VAT at the time of letting the building in question together with the movable property necessary to pursue that activity.

С-374/17 of 19 December 2018

Real property transfer tax – Exemption - Transfers in ownership of a property occurring as a result of restructuring procedures carried out within certain groups of companies - Concept of ‘State aid’

Key aspects of the decision in the economic range:

State aid. Material selectivity. General availability test. General measure.

Reference framework. Justification based on the nature or overall structure of the reference framework.

Tax advantage. Tax on the acquisition of land.

Exemption for transformation procedures within a group of companies. Condition of a stake of at least 95% in the capital of the participating companies. Holding periods of five years prior to and following the transformation procedure.

Proceedings between tax office and A concerning its refusal to grant A the exemption from the real property transfer tax which may under certain conditions be available, under German tax law, to companies acquiring a right of ownership to property in the context of restructuring procedures within certain groups of companies.

С-414/17 of 19 December 2018

Intra-Community acquisitions of goods subject to excise duties - Chain transactions with a single transport - Transaction to which the transport should be ascribed - Transport under an excise duty suspension arrangement - Impact on the classification of an intra-Community purchase

Key aspects of the decision in the economic range:

Products subject to excise duty.

Exemption of supplies of goods dispatched or transported within the European Union.

Intra-Community acquisitions of excise goods, in respect of which the excise duty is chargeable in the Member State of destination, carried out by a taxable person whose other acquisitions are not subject to VAT.

Chain of successive transactions which gave rise only to a single intra-Community transport of excise goods under an excise duty suspension arrangement.

Proceedings concerning the deduction of value added tax in respect of purchases of fuel, from Czech suppliers, which was transported under an excise duty suspension arrangement from Austria to the Czech Republic.

С-422/17 of 19 December 2018

Special scheme for travel agents — Determination of the margin obtained by a travel agent — Taxation of payments on account made before the supply of travel services by the travel agent — Actual cost borne by the travel agent

Key aspects of the decision in the economic range:

VAT rules provided for under the special scheme for travel agents.

Tax chargeability and taxation on payments on account received by a taxable person supplying tourist services, which are taxed under the special scheme for travel agents.

Proceedings concerning a tax opinion issued by the Minister for Finance relating to the chargeability and method of calculation of value added tax in the event of the receipt of a payment on account for a tourist service supplied by a travel agent.

С-552/17 of 19 December 2018

Special scheme for travel agents — Supply of a holiday residence rented from other taxable persons — Additional services — Ancillary or principal services — Reduced rate of tax — Accommodation supplied by a travel agent in his own name

Key aspects of the decision in the economic range:

Service provided by a travel agent.

Interplay between two specific value added tax (VAT) regimes, one concerning the taxable amount (margin), and the other, the reduced rate of VAT.

A supply of a service, subject to the special scheme for travel agents, which consists essentially in the provision of holiday accommodation and in which additional service components are to be regarded merely as ancillary to the principal supply.

Tax rate reduction for the provision of holiday accommodation.

Proceedings concerning the taxation of the supply of holiday accommodation.


С-264/17 of 29 November 2018

Intra-Community transactions — Right to deduct input tax — Works of art, collectors’ items and antiques — Special arrangements for works of art — Margin scheme — Taxable dealers — National tax authorities’ refusal to grant a taxable person the right to opt for application of the margin scheme — Conditions under which applicable

Key aspects of the decision in the economic range:

Intra-Community transactions. Right to deduct input tax.

Supply of works of art by the creator or his successors in title.

Margin scheme. A special tax regime which allows tax to be taxed only on the taxable person's profit margin.

A margin scheme applied to the supply of works of art supplied to the taxable dealer within the Community by their creators or their successors in title where such creators or successors in title are not persons referred to Directive 2006/112.

Proceedings between an art dealer and a Tax Office concerning the refusal of the Tax Office to grant the benefit of the margin scheme to supplies of works of art acquired by the dealer in other Member States.

С-548/17 of 29 November 2018

Taxation of professional football player agencies — Payment by instalments and subject to a condition— Chargeable event, chargeability and collection of the tax

Key aspects of the decision in the economic range:

Value added tax.

Chargeable event and chargeability of a tax on the supply of agency services for professional football players by an agent paid in conditional instalments over several years further to the placement, from being regarded as occurring or taking effect when the player is placed.

‘Accrual taxation’ rule.

Proceedings between a tax office and a company, concerning the value added tax taxation of payments by instalments.



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