On September 12, 2024 the ECJ issued the Judgment in the case C-243/23 (Drebers).
Context: Reference for a preliminary ruling – Harmonisation of fiscal legislation – Common system of value added tax – Deduction of input tax paid – Immovable property acquired as capital goods – Adjustment period – National legislation laying down a 15-year period for certain types of renovation works – Requirement that a renovated building is considered as new – Whether permissible – Direct effect
Summary
- Law firm 22 L BV owns a property that is used for both residential and professional purposes.
- Major works were carried out on the building from 2007 to 2015, resulting in the renovation of the main building, the construction of an annex and an elevator shaft, and the renovation of an intermediate building.
- The building’s cadastral income increased from EUR 2,456 to EUR 3,850 after the works were completed.
- The building is intended for 60% professional use and 40% private use.
- In 2014, Belgium abolished the VAT exemption for lawyers, and L BV became a taxable person for VAT purposes.
- L BV adjusted its VAT deductions for the costs of the works it had previously paid but couldn’t deduct when its activity was exempt.
- The tax authorities conducted an inspection and concluded that the works did not result in the construction of a new building, but rather an improvement and renovation of the existing building.
- The tax authorities imposed a constraint on L BV to pay VAT relating to the deductions.
- The Court of First Instance ruled that parts of the building constituted newly constructed parts and allowed L BV to deduct 60% of the VAT relating to those works.
- The case was appealed, and the Court of Appeal referred questions to the Court of Justice of the European Union regarding the application of the extended adjustment period for immovable capital goods and the direct effect of the VAT Directive.
- The Court of Justice held that the extended adjustment period should apply to works that involve a major renovation or expansion of the building and have an economic life equivalent to a new building.
- The Court also ruled that the VAT Directive has direct effect, allowing a taxable person to rely on it against the tax authorities to apply the extended adjustment period.
Article in the EU VAT Directive
Articles 12, 187 and 189 of the EU VAT Directive 2006/112/EC.
Article 12
1. Member States may regard as a taxable person anyone who carries out, on an occasional basis, a transaction relating to the activities referred to in the second subparagraph of Article 9(1) and in particular one of the following transactions:
(a) the supply, before first occupation, of a building or parts of a building and of the land on which the building stands;
(b) the supply of building land.
2. For the purposes of paragraph 1(a), ‘building’ shall mean any structure fixed to or in the ground.
Member States may lay down the detailed rules for applying the criterion referred to in paragraph 1(a) to conversions of buildings and may determine what is meant by ‘the land on which a building stands’.
Member States may apply criteria other than that of first occupation, such as the period elapsing between the date of completion of the building and the date of first supply, or the period elapsing between the date of first occupation and the date of subsequent supply, provided that those periods do not exceed five years and two years respectively.
3. For the purposes of paragraph 1(b), ‘building land’ shall mean any unimproved or improved land defined as such by the Member States.
Article 187
1. In the case of capital goods, adjustment shall be spread over five years including that in which the goods were acquired or manufactured.
Member States may, however, base the adjustment on a period of five full years starting from the time at which the goods are first used.
In the case of immovable property acquired as capital goods, the adjustment period may be extended up to 20 years.
2. The annual adjustment shall be made only in respect of one-fifth of the VAT charged on the capital goods, or, if the adjustment period has been extended, in respect of the corresponding fraction thereof.
The adjustment referred to in the first subparagraph shall be made on the basis of the variations in the deduction entitlement in subsequent years in relation to that for the year in which the goods were acquired, manufactured or, where applicable, used for the first time.
Article 189
For the purposes of applying Articles 187 and 188, Member States may take the following measures:
(a) define the concept of capital goods;
(b) specify the amount of the VAT which is to be taken into consideration for adjustment;
(c) adopt any measures needed to ensure that adjustment does not give rise to any unjustified advantage;
(d) permit administrative simplifications.
Facts
The defendant is a company in which the economic activity of the profession of lawyer is exercised. For several years now, she has owned a property that is partly used for private purposes and partly for economic activities. In the course of the years 2007 to 2015, very extensive work in immovable condition was carried out on that property.
Where the economic activity of the profession of lawyer was previously exempt from VAT, that exemption was lifted with effect from 1 January 2014, as a result of which the defendant has since been registered as a VAT taxable person. The applicant, the General Administration of the Special Tax Inspectorate (AABBI), Inspectorate Ghent 2, has commenced an unannounced tax audit at the defendant’s registered office. As a result of that check, the applicant concluded that various violations of VAT legislation had been committed by the defendant in the period from January 1, 2014 to September 30, 2015. These, together with the consequences associated with them, were included in a correction statement by the applicant. In total, VAT was deemed to be due in the official report for an amount of EUR 163,756.24. A writ of execution has been issued against the defendant to collect the amount due. The defendant lodged an appeal against this, which was declared admissible. The applicant appealed against that judgment.
Consideration:
The referring court notes that, on the basis of provisions of European directives, it is stipulated that the deduction of tax levied on assets and services that have characteristics similar to those usually attributed to assets is subject to adjustment for a period of five years, but with regard to the tax levied on real estate assets, this period is increased to 15 years. Under Belgian law, therefore, when an existing building is renovated, the 15-year review period is applied with regard to the VAT levied on these works if, after the execution of those works, there is a ‘new building’ for VAT purposes. The referring court considers the applicant’s complaint to be well founded and holds that the elevator shaft and the two annexes behind the mansion cannot be regarded as ‘part of a building’. These are not autonomously functioning parts of a structure that are permanently connected to the ground, in the sense that they could be economically operated independently.
Under the VAT Directive, the review period for investment goods is, in principle, 5 years. However, member states can extend the review period to a maximum of 20 years for ‘immovable investment goods’. The defendant argues that ‘immovable capital goods’ in the Community context usually refers to goods that are used and depreciated over a longer period of time and that have a longer economic life. The VAT Directive gives the national member states a certain discretion, including the power to determine which goods fall under the concept of ‘investment good’ and to determine what ‘amount of VAT should be taken into account in the adjustment’. The defendant argues that this competence is not absolute and that the Member States may not exceed the limits of their discretion, which implies that the Member States must respect the terms used in the VAT Directive. The referring court considers that the defendant should therefore be followed in stating that reference is made to the principle of neutrality as a special expression of the principle of equality, on the basis of which similar goods or services, which are therefore in competition with each other, must be treated equally for VAT purposes and that a taxable person may rely on the VAT Directive to oppose national legislation which is inconsistent with the Directive and its underlying principles. which implies that Member States must respect the terms used in the VAT Directive. The referring court considers that the defendant should therefore be followed in stating that reference is made to the principle of neutrality as a special expression of the principle of equality, on the basis of which similar goods or services, which are therefore in competition with each other, must be treated equally for VAT purposes and that a taxable person may rely on the VAT Directive to oppose national legislation which is inconsistent with the Directive and its underlying principles. which implies that Member States must respect the terms used in the VAT Directive. The referring court considers that the defendant should therefore be followed in stating that reference is made to the principle of neutrality as a special expression of the principle of equality, on the basis of which similar goods or services, which are therefore in competition with each other, must be treated equally for VAT purposes and that a taxable person may rely on the VAT Directive to oppose national legislation which is inconsistent with the Directive and its underlying principles.
The defendant is of the opinion that by transposing the concept of ‘immovable investment goods’ as used in the VAT Directive in such a strict manner into domestic law, by only applying the 15-year review period for works that lead to a building that can be sold subject to VAT, without applying the same period for works that result in a building having a similar economic life as a new building as a result of those works, solely because, in the opinion of the appellant, the renovated building could not be subject to VAT. sold, this violates the VAT Directive.
The defendant argues that it should first be established that the VAT Directive in no way refers to ‘new buildings’ or explains what should be regarded as a ‘new building’ under the VAT rules, which, under the application of VAT can be transferred. On the other hand, the notion ‘investment good’, according to the respondent, unmistakably refers to goods that are used over a longer period of time and are generally written off. Subsequently, the defendant argues that ‘immovable investment goods’ must be understood to mean real estate that has a longer economic life than the standard review period of 5 years. Based on the principle of fiscal neutrality, the defendant argues that it is the economic useful life of the property that is important, rather than the time when it was first put into use. When buildings are undergoing major renovations, so that they have an economic useful life that is just as long as new buildings, they are comparable to new buildings as a means of production created as a result of the works and they should receive the same VAT treatment.
Source ecer.minbuza.nl
Questions
(1) Do Articles 187 and 189 of [the VAT Directive] preclude legislation such as that at issue in the main proceedings (namely Articles 48(2) and 49 of the VAT Code, read in conjunction with Article 9 of [Royal Decree No 3]), according to which the extended revision (adjustment) period (of 15 years) in the case of conversion of an existing building is applied only if, after the works have been carried out, there is, on the basis of the criteria of national law, a “new building” within the meaning of Article 12 of that directive, whereas the period of economic operation of a building which has been extensively converted (which, on the basis of the administrative criteria of national law, is not, however, classified as a “new building” within the meaning of Article 12 above) is identical to that of a new building, which is considerably longer than the five-year period referred to in the above-mentioned Article 187, which is evidenced in particular by the fact that the work carried out is depreciated over a period of 33 years, i.e. the depreciation period of new buildings?
(2) Does Article 187 of [the VAT Directive] have direct effect, with the result that a taxable person who has carried out work on a building, without that work entailing, on the basis of the criteria of national law, the classification of the converted building as a “new building” within the meaning of Article 12 of that directive, even though it has a period of economic operation identical to that of such new buildings, who benefit from a 15-year revision (regularisation) period, can invoke the application of the 15-year revision (regularisation) period?
AG Opinion
(1) Articles 187 and 189 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax
must be interpreted as precluding legislation according to which an extended adjustment period within which input VAT payable or paid with respect to ‘immovable property acquired as capital goods’ may be adjusted applies to supplies of services connected to immovable property, such as works carried out for the renovation or conversion of a building.
(2) The first sentence of Article 187(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax has direct effect.
Decision
1. Article 190 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, read in conjunction with Article 187 of that directive and in the light of the principle of fiscal neutrality,
must be interpreted as meaning that:
precludes national legislation relating to the adjustment of deductions from value added tax (VAT) under which the extended adjustment period laid down pursuant to Article 187 of that law for immovable capital goods is not applicable to works of immovable property subject to VAT as a supply of services within the meaning of that directive, which involve a major extension and/or in-depth renovation of the building on which this work relates and whose effects have an economic life that corresponds to that of a new building.
(2) Article 190 of Directive 2006/112, read in conjunction with Article 187 of that directive and in the light of the principle of fiscal neutrality,
must be interpreted as meaning that:
it has direct effect in such a way that the taxable person may rely on it before the national court against the competent tax authority in order to have the extended adjustment period laid down for immovable property fixed for immovable property capital goods applied to the taxable person, subject to VAT as a supply of services within the meaning of that directive, in the event that that authority has refused to apply the extended regularisation period on the basis of national legislation such as that referred to in the first question.
Summary
Source
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