In our opinion, it cannot be deduced from this decision that the Court of Justice considers that the sale of new buildings in a let state by a developer constitutes a transfer of an undertaking. Both the questions put by the referring court and the answers to them by the Court of Justice are worded too broadly for that conclusion to be drawn. Moreover, this case does not concern the transfer of a new building by a project developer, but the transfer of an old building. If the project developer in this case built the shopping centre, and it appears that is the case, then he must have let this center himself for more than two years before the transfer.
Because the Supreme Court has yet to pass judgment in the cases ruled by the Arnhem-Leeuwarden Court of Appeal in 2022, it is nevertheless (still) recommended for project developers to object to the transfer of new buildings in a leased state in order to retain their rights. the payment of VAT or against the imposed additional tax assessment.
Source: btwinstituut.nl
