On Dec 17, 2020, the ECJ issued his decision on the case C-449/19 (WEG Tevesstraβe vs DE). This is a German referral asking whether the VAT Directive is to be interpreted as precluding national legislation under which the supply of heat by associations of residential property owners to those owners is exempt from VAT.
Artiles in the EU VAT Directive
Article 135(1)(l) of the EU VAT Directive 2006/112/EC
Article 135
1. Member States shall exempt the following transactions:
(l) the leasing or letting of immovable property.
Facts
Dispute about the deduction of input tax on the purchase and operating costs of a combined heat and power plant (applicant, association of home and co-owners, a GmbH, government agency and municipality). For 2012, the applicant declared input tax of € 19,765.17, of which the defendant deducts 28% as part of the electricity generation costs. A deduction on the part that is related to heat generation is refused because deliveries of heat to owners are tax-free. An appeal against this refusal was made on 13.12.2016 because the objection was rejected.
Question
Are the provisions of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax to be interpreted as precluding legislation of a Member State under which the supply of heat by associations of residential property owners to those owners is exempt from value added tax?
AG Opinion
AG proposes that the Court answer the question referred by the Finanzgericht Baden – Württemberg (Finance Court, Baden – Württemberg , Germany) as follows.
Council Directive 2006/112 /EC of 28 November 2006 on the common system of value added tax must be interpreted as permitting national legislation under which the supply of heat to apartment owners by a group of apartment owners is exempt from value added tax. value added tax, in so far as the consideration received by that entity for the supply of heat covers only those charges and expenses incurred for the supply of heat to the common areas of the property.
However, Directive 2006/112 /EC must be interpreted as precluding the same national legislation in so far as the consideration received by that entity for the supply of heat relates in whole or in part to the supply of heat to individually owned shares.
It is for the national court to determine the circumstances in which the supply of heat is reimbursed in the present case.
Decision
Article 135(1)(l) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, as amended by Council Directive 2009/162/EU of 22 December 2009, must be interpreted as meaning that it precludes national legislation which exempts from value added tax the supply of heat by an association of residential property owners to the property owners belonging to that association.
Source
Reference to the ECJ case in the EU Member States
Newsletters
