The interested party, a VAT group, has taken over movable property from a company (hereinafter: seller). With regard to this transfer, the seller has charged VAT and the interested party has deducted this VAT. The interested party started renting the movable property to the seller after the transfer (‘sale-and-lease-back’). The movable property has not been moved in the context of the transfer. The tax inspector subsequently levied the VAT deducted from the interested party, because he is of the opinion that VAT was incorrectly charged to the interested party with regard to the aforementioned transfer. According to the inspector, there is a transfer (of a going concern) within the meaning of Article 37d of the VAT Act (Article 37d transfer). The inspector fails to meet the burden of proof that rests on him that such a transfer has taken place. Now that the seller has continued to operate the sold movable property after the transfer in exactly the same way as it did before the transfer, it has fully continued its activities. From ECLI:NL:HR:2021:154 it then follows that for that reason alone there can be no question of an Article 37d transfer.
Source: uitspraken.rechtspraak.nl
