Source Curia
minbuza.nl (Dutch) mentions the following background information for this case (unofficial translation):
Keywords : VAT; Rental; means of transport
Topic : Council Directive 2006/112 / EC of 28 November 2006 on the common system of value added tax, as amended by Council Directive 2008/8 / EC of 12 February 2008 (hereinafter: the VAT Directive);
Facts:
The applicant is an NV under Luxembourg law with its registered office in Luxembourg. Two employees who work in her company in Luxembourg and live in Germany have a company car that belongs to the business assets, also for private purposes. During the disputed years, she withheld a contribution to the costs of the company car from the wages of one of the employees. The applicant is taxed in Luxembourg under the so-called “simplified tax scheme” where no input tax can be deducted. That is why it did not deduct input tax for the costs of both company cars. Conversely, in Luxembourg, under the simplified tax regime, no tax is charged on the posting of vehicles to employees. In November 2014, the applicant registered with the defendant tax authorities for the provision of vehicles in Germany for VAT purposes. In its VAT returns for the disputed years, the applicant declared various services taxable at a rate of 19% for the provision of vehicles from 2013, amounting to € 7,904 (2013) and € 20,767 (2014), as well as the sales tax due. The applicant lodged an objection against the VAT assessments for both years that the defendant rejected as unfounded. By her action, the applicant requests that the turnover tax for 2013 and 2014 be set at zero euros. Defendant requests that the appeal be dismissed as unfounded.
Recital:
The VAT Committee adopted guidelines at its meeting on 20.10.2014. Germany and Luxembourg interpret the guidelines differently; Unlike Germany, Luxembourg does not regard the provision of a vehicle as a rental for consideration but as a transaction treated as a transaction for consideration under Article 26 (1) (a) of the VAT Directive, the place of supply of which, under Article 45 of the VAT directive corresponds to the place of business of the supplier (Luxembourg). The outcome of the dispute depends on the interpretation of Article 56 (2) of the VAT Directive.The referring court is therefore proceeding to ask the question.
Preliminary question:
Must Article 56 (2) of the VAT Directive be interpreted as meaning that ‘other than short-term rental of a means of transport to a non-taxable person’ also extends to the provision of a vehicle (commercial vehicle) belonging to the business of a taxable person his employees,
if they do not pay compensation for this which does not (partly) exist in their work performance, in short do not make any payment, do not spend part of their remuneration in cash on it and also not according to an agreement between the parties, according to which the right to use the company car is accompanied by waiving other benefits, choosing from different benefits offered by the taxable person?
Cited (recent) case law: C-210/11 and C-211/11; C-258/95; C-40/09; Belgian State / BLM NV C-436/10;
