Explanation of transitional law in the event of an increase in the VAT rate; purchase guarantee agreement; the concept of ‘agreement’ in the transitional arrangement for homes
In December 2010, the interested party in this case concluded a so-called purchase guarantee agreement with a foundation with regard to new-build homes still to be built. Under this agreement, the foundation guarantees that it will purchase the newly built homes that remain unsold in the project from the interested party at a fixed price. On 30 September 2013, the interested party issued an advance invoice to the foundation for part of the purchase price. The houses were delivered in 2014.
In the meantime, the general VAT rate has been increased from 19% to 21%. Transitional arrangements have been made, including one for homes that an entrepreneur delivers after 30 September 2012 pursuant to an agreement concluded before 28 April 2012. The installments that expire under that agreement before 1 October 2013 are taxed at the old VAT rate.
In dispute is whether a delivery of homes took place pursuant to an agreement concluded before 28 April 2012, in particular how the term ‘agreement’ as referred to in the transitional arrangement of Article XIX, paragraph 5, of the 2013 Budget Agreement Elaboration Act should be interpreted. explained.
The Court considers that the purchase guarantee agreement essentially contains a put option that has not been exercised before September 30, 2013. According to the Court, this does not concern the delivery of homes after September 30, 2012 pursuant to an agreement concluded before April 28, 2012. The Court rules that the transitional arrangement does not apply, so that the supply of unsold homes by the interested party is taxed at a rate of 21%.
The plea argues that the transitional arrangement applies not only to purchase and building contracts concluded before 28 April 2012, but to all contracts concluded before 28 April 2012 and relating to residential properties for which the payment is due in installments. According to the plea, the purchase guarantee agreement of 23 December 2010 meets those conditions.
According to AG Ettema, that argument fails. Not every agreement that is an agreement according to national civil law meets the transitional provision, but only the agreement that extends to the delivery of a home. The AG does not consider the explanation given by the Court of the purchase guarantee agreement incomprehensible or insufficiently reasoned, nor contrary to the interpretation that must be given to an option clause under national civil law. In its opinion, the Court has also ruled with sufficient reasons and not incomprehensible that the delivery of the new-build homes took place pursuant to an agreement entered into after 28 April 2012. Because the purchase was concluded at the time of the exercise of the put option and the exercise has taken place at the earliest on 30 September 2013,
The AG also notes that for the tax to become chargeable, all relevant elements of the future supply must be known, and in particular the goods must be accurately described at the time of the advance payment. That was probably not the case on September 30, 2013, according to the AG.
The AG suggests that the Supreme Court should declare the appeal in cassation of the interested party unfounded.
Source: rechtspraak.nl
