Preliminary questions of 15 August 2018 in case C-420/18 (IO) regarding
Unofficial translation
Facts (simplified):
- IO is employed as a municipal official and is also a member of the Supervisory Board of Stichting E (hereinafter: the foundation).
- IO receives a gross remuneration for its work as a supervisory director, subject to wage tax and national insurance contributions.
- Until 01.01.2013, IO was not considered as a taxpayer for VAT, based on the national rule that members of a Supervisory Board who held a maximum of four supervisory directorships were not regarded as a taxpayer for VAT. By decision of 27.06.2012, this approval was withdrawn with a transitional arrangement until 01.01.2013 following the European Commission’s request to adjust the VAT rules for the treatment of members of supervisory boards.
- According to the Commission, the work of a Commissioner, even if only for one board, should be regarded as an economic activity for VAT.
- The question is whether IO, for its activities as a member of the Supervisory Board of the foundation, must be regarded as a taxpayer for VAT. IO answers this question in the negative and the tax authorities confirms it.
IO, as an individual member of the Supervisory Board, argues that he is subordinate to the Supervisory Board. The Inspector argues that the relationship between the foundation and a member of the Supervisory Board is characterized by equality; there is a contract of assignment and no employment contract. The referring court considers that there is so much doubt as to the answer to the question in dispute that it is appropriate to apply to the Court.
Preliminary questions:
The ECJ is asked the following questions:
Is a member of the Supervisory Board of a foundation, who is in a subordinate position with regard to this Board for his employment and remuneration conditions, but who is not in a subordinate position with respect to the Supervisory Board or the Foundation, performing economic activities independently within the meaning of Article 9 and Article 10 of Council Directive 2006/112 / EC of 28 November 2006 on the common system of value added tax?
Source: MinBuZa (Dutch)
