Supreme Court: Auction scheme and profit margin scheme, VAT is due on premiums and commissions

4.1.2 The Court has established that the interested party has apparently opted for the application of the profit margin scheme for the levying of VAT for the periods of 2010 when applying Article 3(5) of the Act. This finding has not been challenged on appeal. Assuming that it follows from what has been considered above in 3.2 to 3.6 inclusive, that the interested party is liable to pay VAT on the difference between the amount that the buyer pays the interested party for the auctioned goods (the hammer price plus buyer’s premium) and the amount that the interested party pays to the seller of the auctioned goods (the hammer price less commission). The profit margin therefore includes the commission charged by the interested party to private sellers.

4.1.3. The complaints fail insofar as they state that the interested party cannot recover the VAT, which it did not state separately when charging the commission to the private sellers, from those sellers afterwards and that that commission is therefore not subject to turnover tax or can be subjected. After all, as considered above in 3.5, the VAT that the auctioneer must pay on the declaration – also insofar as it relates to the amount designated as commission – is deemed to be included in the profit margin and therefore to have been received as such by the auctioneer.

4.1.4 The complaints also fail insofar as they allege that it is contrary to EU law to charge private sellers, who have already paid sales tax when purchasing the item to be auctioned, with sales tax deemed to be are included in the committee. These complaints ignore the fact that these are costs incurred by those private sellers for auctioning the relevant good, which costs have not previously been charged on that good as such and which are charged as compensation for a separate, taxable performance in the levy of VAT  must be involved.

4.1.5 Furthermore, the complaints fail insofar as they argue that there is no sound basis in European legislation for the additional assessment in respect of commissions received in a case such as that of the interested party.Indeed, Articles 333 and 334 of the VAT Directive 2006 allow Member States to apply a special regime to the sale by public auction of second-hand goods, works of art, collectors’ items and antiques. This arrangement means that VAT is levied on the profit margin made by the organizer of the public auction on deliveries of the aforementioned goods if this organizer acts in his own name and on behalf of – under others – non-taxable persons.
Application of Article 3(5) of the Act in combination with the profit margin scheme corresponds, for an auctioneer who performs his auction activities under the aforementioned circumstances and conditions, with regard to the VAT to be levied from him in result, with the VAT referred to above. regulation laid down in 2006. It is therefore beyond reasonable doubt that the application of Article 3(5) of the Act in combination with the profit margin scheme, for an auctioneer such as the interested party, with regard to the liability for VAT, is in accordance with the VAT Directive 2006.

4.2 The Supreme Court has also assessed the other complaints about the Court’s ruling. The outcome of this is that these complaints cannot lead to the annulment of that judgment either. The Supreme Court is not required to state reasons for arriving at this ruling. In assessing these complaints, it is not necessary to answer questions that are important for the unity or development of the law (see Article 81(1) of the Judicial Organization Act).