On January 16, 2023, the ECJ issued the Order in the case C-729/21 (Dyrektor Izby Administracji Skarbowej w Łodzi).
Context: Reference for a preliminary ruling – Article 99 of the Rules of Procedure of the Court – Directive 2006/112/EC – Value added tax (VAT) – Article 19 – Concept of “transfer of total or partial universality of goods” – Contract of sale of a shopping center – Business transfer – Partial transfer of the tangible and intangible elements of the business
Article in the EU VAT Directive
Article 19 of the EU VAT Directive 2006/12/EC
Article 19 (Supply of Goods – Transfer of Going Concern)
In the event of a transfer, whether for consideration or not or as a contribution to a company, of a totality of assets or part thereof, Member States may consider that no supply of goods has taken place and that the person to whom the goods are transferred is to be treated as the successor to the transferor.
Member States may, in cases where the recipient is not wholly liable to tax, take the measures necessary to prevent distortion of competition. They may also adopt any measures needed to prevent tax evasion or avoidance through the use of this Article.
Facts
The core of the dispute is the assessment of the subject-matter of the agreement relating to the purchase made by W for which the invoice dated 30-08-2016 was drawn up and whereby either an independent part of a company or an asset, namely a real estate with all associated appurtenances and the associated rights, has been acquired. According to the terms of the agreement, the seller sold the immovable property, the structures on the ground and movable property, free of charges, except permitted charges, to W. In the agreement, the seller and W stated that the immovable property and the associated rights do not form a company or an independent part thereof and that the transaction in question does not constitute the sale or other transfer of the seller’s company (or an independent part thereof). Re. The Polish court of first instance agreed with the authorities’ view that the sale did concern an independent part of a company. The main component was the built-up real estate, on which the seller carried on an economic activity by renting out commercial spaces. The main components were therefore the leases concluded. The judge noted that the transaction did not concern the entire company, as certain agreements were not transferred under it. It held, however, that the transaction at issue concerned a minimum sufficient to maintain the economic activity unchanged. W has lodged an appeal in cassation against this. It held, however, that the transaction at issue concerned a minimum sufficient to maintain the economic activity unaltered. W has lodged an appeal in cassation against this. It held, however, that the transaction at issue concerned a minimum sufficient to maintain the economic activity unchanged. W has lodged an appeal in cassation against this.
Consideration:
The first question referred concerns the question whether the exclusion from taxation under Polish law on the supply of an undertaking or an independent part of it (Article 6(1) of the VAT Act) complies with the requirements laid down in Article 19 of the VAT Directive laid down condition that the person to whom the goods are transferred ‘takes the place’ of the transferor. In the event that the Court finds that the solution introduced by the Polish legislature in Article 6(1) of the VAT Act, whereby the supply of an independent part of a company is not taxed, satisfies the condition laid down in Article 19 of the VAT Directive regarding the succession between the seller and the buyer, the problem raised in the second question arises. The referring court wishes to obtain interpretative guidelines that would allow the supply of immovable property to be more clearly demarcated from the supply of an independent part of an undertaking.
Source Minbuza.nl
Questions
1. Are the provisions of EU law on VAT to be interpreted as meaning that a national provision such as Article 6(1) of the ustawa o podatku od towarów i usług (Law on the taxation of goods and services) of 11 March 2004 (Dz. U 2021, item no. 685), which excludes the levying of tax on the supply of an independent part of an undertaking, may be applied without making the application of such an exemption subject to the condition laid down in Article 19 of Directive 2006/ 112/EC of the Council of 28 November 2006 on the common system of value added tax (OJ 2006,L 347, p. 1, as amended), that is to say, succession in the rights of the seller by the buyer?
2. If the first question is answered in the affirmative: for the purpose of applying the exemption provided for in Article 6(1) of the VAT Act, must all the elements of such an independent part of the seller’s assets be transferred and does any change imply this point (in particular the non-takeover of insurance contracts and of the management of the transferred goods) that a taxable supply of goods has taken place?
AG Opinion
None
Decision (Unofficial translation)
1) Article 19, first paragraph, of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax,
should be interpreted as:
it is not opposed to a provision of national law which provides that the “transmission of a total or partial universality of goods” is not subject to value added tax, without subjecting its applicability to a condition relating to that the beneficiary continues the person of the transferor.
2) The first paragraph of Article 19 of Directive 2006/112
should be interpreted as:
falls under the concept of “transmission of a total or partial universality of goods” the transfer of part of a company, even though all the tangible and intangible elements that constitute it have not been transferred to the acquirer , provided that all the elements transmitted are sufficient to allow this company to pursue an independent economic activity.
Summary
Source
Similar ECJ cases
- C-497/01 (Zita Modes) – TOGC covers intention to operate the business or the part of the undertaking transferred and not simply to immediately liquidate the activity concerned and sell the stock
- C-444/10 (Schriever) – TOGC includes rental for indefinite period of the retail space to the transferee
- Roadtrip through ECJ Cases – Focus on ”Transfer of Going Concern” (Art.19)
How did countries implement the case? Your feedback appreciated! Let us know
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