C-791/18 Stichting Schoonzicht
Facts:
- Foundation Schoonzicht has had an apartment complex built on its land, consisting of seven residential apartments.
- Construction commenced in 2013 and the complex was completed in July 2014.
- For VAT, this delivery constituted a supply of goods within the meaning of Article 3, paragraph 1, c of the Dutch VAT Act.
- With this provision, the Dutch legislator has made use of the option laid down in Article 14 (3) of the VAT Directive 2006 to consider the construction of certain immovable works as the delivery of goods.
- The VAT that was charged in the course of 2013 in connection with the construction of the complex was fully deducted as the property was meant to be used for VAT taxable activities.
- From 1 August 2014, however, four of the apartments have been leased with VAT exemption. The other three apartments were not used in 2014.
- Stichting Schoonzicht has reported output VAT to be attributed to these apartments, for the period in which the four apartments were taken into use (the third quarter of 2014). However, the foundation then appealed against this payment, arguing that for investment goods a revision of the entire deduction conflicts with the VAT directive.
- The Inspector disagrees.
- The Dutch Supreme Court reads article 187 of the VAT Directive in conjunction with Articles 184 to 186 and also feels that the Dutch revision rules are in line with these articles. However, it is not beyond any reasonable doubt that Articles 184 to 187 of the VAT Directive 2006 allow that during the first revision year all input VAT can initially be recovered. The Supreme Court therefore presents this issue to the Court of Justice.
Preliminary questions:
1. Articles 184 to 187 of the VAT Directive 2006 preclude a national review scheme for capital goods which provides for a dispersed review over a series of years, with the year of commissioning – whichever year is the first year of revision – the total amount of the deduction originally applied for that capital goods is adjusted (revised) at the time when their initial deduction appears to deviate from the deduction that the taxpayer is entitled to apply on the basis of the actual use of the investment good?
If question 1 is answered in the affirmative:
2. Must Article 189 (b) or (c) of the VAT Directive 2006 be interpreted in such a way that the adjustment referred to in Question 1 at once of the deduction initially applied in the first year of the review period constitutes a measure which the Netherlands has application of Article 187 of the VAT Directive 2006?
Cited: (recent) case law: C-249/17 Ryanair, C-533/16 Volkswagen, C-153/11 Klub, C-500/13, C-532/16 SEB bankas AB
Source: minbuza.nl (Dutch)
