The dispute is between W. sp. z o.o. and the Dyrektor Izby Administracji Skarbowej w Łodzi (Director of the Tax Administration Chamber in Łódź, Poland) regarding W.’s request to deduct VAT paid on the acquisition of a shopping center in Poland.
Article 2(1) of Directive 2006/112 states that certain transactions, including the sale of goods, are subject to VAT.
Article 19(1) of the directive allows Member States to consider that no delivery of goods has occurred when there is a transfer of a total or partial universality of goods.
Polish law defines an organized establishment as a permanent place of business with a certain degree of permanence and a structure enabling it to carry out economic activities.
The referring court seeks clarification on whether the transfer of a shopping center constitutes a transfer of a total or partial universality of goods and whether it qualifies as an organized establishment under Polish law.
The Court (Ninth Chamber) rules:
1) The first paragraph of Article 19 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax , must be interpreted in the sense that: it does not oppose 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 making its applicability subject 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 must be interpreted in the sense that: falls under the notion 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 which 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.
Source: curia.europa.eu
Note that this post was (partially) written with the help of AI. It is always useful to review the original source material, and where needed to obtain (local) advice from a specialist.
