News

29.05.2017

New judgments of the court April & May

 

 

     Tax & Financial Standards

Expect:

Judgment C‑132/16

Reference for a preliminary ruling of Bulgaria

Reference for a preliminary ruling - VAT legislation - Deduction of tax - Free supply of services in favor of municipal infrastructure - Link to the economic activity of the taxable person - Economic purpose in relation to a link of conduct - Accounting for costs as general costs)

Judgement 648/15

Article 273 TFEU — Dispute between Member States submitted to the Court under a special agreement between the parties —Interpretation of a convention for the avoidance of double taxation — Taxation of particular certificates or financial instruments (Genussscheine) — Interest from debt-claims — Concept of ‘income from rights or debt-claims with participation in profits’ — Profit-sharing bonds — Profit-participating loans — Silent partner

Case from May C-17/16

Controls of cash entering or leaving the European Union - Scope of the obligation to declare - International transit area of a Member State’s airport - Notion of a ‘natural person entering or leaving’ the European Union

Key aspects of the decision in the economic range:

Rules for the control of cash entering or leaving the European Union. Failing to declare capital. Natural person entering or leaving the European Union. Obligation to declare in the international transit areas of airports located within the territory of the European Union. Notion of a ‘natural person entering or leaving’ the European Union.

In proceedings between Mr Oussama El Dakkak and Intercontinental SARL, and the Customs and Excise Authority concerning their claims for compensation for the loss suffered as a result of the latter’s seizure of cash sums transported by Mr El Dakkak while passing through an airport (France) on the ground that he failed to declare those sums.

 

Case from May C-33/16

Value added tax - Exemption - Supply of services to meet the direct needs of vessels used for navigation on the high seas - Loading and unloading of cargo by a subcontractor on behalf of an intermediary - Concept of ‘direct needs of a vessels and its cargo’

Key aspects of the decision in the economic range

Supply of services. Exemption from value added tax if the service is supplied to the cargo holder, such as the exporter or importer of the cargo concerned. Exemption only to services which are supplied to the ship owner. Concept of ‘direct needs of a vessels and its cargo’.

In proceedings concerning a tax decision, by which it held that the loading and unloading cargo onto and off a vessel, when supplied by a subcontractor which invoices them to the contracting undertaking rather than to the ship owner directly, do not qualify for the exemption from value added tax.

Case from May C-36/16

Common system of value added tax - Taxable transactions - Transfer to the State or to a local authority of immovable property in order to settle a tax debt - Meaning of ‘supply of goods for consideration’

Key aspects of the decision in the economic range:

Tax law. Taxable person acting as such - taxability of the transfer of property in lieu of payment in discharge of a tax debt. The liability to value added tax of a transaction in which the company transferred ownership of immovable property to a local authority in settlement of a tax debt. Meaning of ‘supply of goods for consideration’.

Case from May C-48/16

Coordination of the laws of the Member States relating to self-employed commercial agents - Self-employed commercial agents - Commercial agent’s commission - Partial non-execution of the contract between the third party and the principal - Concept of ‘reason for which the principal is to blame’

Key aspects of the decision in the economic range:

Protection available to commercial agents vis-à-vis their principals and to the security of commercial transactions. A provision in a contract for commercial agency under which the agent is obliged to return a proportionate part of his commission. Derogation to the detriment of the commercial agent. Concept of ‘reason for which the principal is to blame’.

In proceedings concerning a demand for the repayment of commissions.

Case from May C-59/16

Customs union - Community Customs Code - Customs value - Transaction value - costs, incurred in connection with moving the goods to the customs territory - Concept of ‘cost of transport’

Key aspects of the decision in the economic range:

The customs value of imported goods. A request for payment of additional customs duties. The supplement charged by the forwarding agent to the importer, corresponding to that agent’s profit margin and costs, in respect of the service which it provided in organising the transport of the imported goods to the customs territory of the European Union. Concept of ‘cost of transport’.

In proceedings concerning a request for payment of additional customs duties on the ground that the supplement charged by the forwarding agent ought to have been included in the cost of transport.

Case from May C-365/16

Common system of taxation applicable in the case of parent companies and subsidiaries of different Member States - Prevention of double taxation - The contribution in addition to corporation tax to which a resident parent company is subject on the distribution of profits, including those made by its non-resident subsidiaries

Key aspects of the decision in the economic range:

Eliminating double taxation of profits distributed by a subsidiary to its parent company at the level of the parent company. A tax measure providing for the levy of a tax when the parent company distributes dividends and the basis of assessment of which tax is the amounts of the dividends distributed, including those coming from that company’s non-resident subsidiaries. Contribution of 3% in addition to corporation tax.

In proceedings concerning an action for annulment of an administrative doctrine concerning the contribution in addition.

Case from May C-699/15

Value added tax - Exemptions for certain activities in the public interest - Restaurant and theatre services to paying third parties through an educational establishment as part of training – Concept of ‘closely related’

Key aspects of the decision in the economic range:

The exemption from value added tax of the restaurant and entertainment services. Exemptions. Provision of education in circumstances where the making of supplies of restaurant services and entertainment services is facilitated by the students in the course of their education and as an essential part of their education. Concept of ‘closely related’.

In proceedings between the Commissioners for Her Majesty’s Revenue and Customs and Brockenhurst College (‘the College’) concerning the exemption from value added tax (VAT) of the restaurant and entertainment services supplied by the College.

         

Case from April C-564/15

The common system of value added tax - Reverse charge mechanism - Decision of tax authorities establishing a ‘tax difference’ owed by the receiver of goods - Undue payment of the tax by the purchaser of property to the seller as a result of an incorrectly drawn up invoice - Imposition of a fine - Principles of proportionality, equivalence and effectiveness

Key aspects of the decision in the economic range:

Right to deduct input tax. Reverse charge system. The supply of immovable property sold by a judgment debtor in a compulsory sale procedure. Tax authority’s decision holding that the property purchaser has an outstanding tax liability, refusing payment of the deduction sought by the purchaser, and imposing a penalty tax. Imposition of a penalty for selecting an incorrect method of taxation in the case of a declaration of a tax difference, where the Treasury has not incurred any loss of revenue and there is no evidence of abuse. Principles of proportionality, equivalence and effectiveness.

In proceedings concerning the Hungarian tax authority`s decision that Mr Farkas has an outstanding tax liability and imposing a tax penalty on him as a result of the non-application of national provisions on the reverse charge system.

Case from April C-680/15

Safeguarding of employees’ rights - Application of a collective labour agreement - Legislation of a Member State authorising the incorporation of clauses referring to collective labour agreements after the date of the transfer

Key aspects of the decision in the economic range:

Safeguarding of employees’ rights in the event of transfers of undertakings. Clause in a contract of employment which refers to the terms and conditions provided for in a collective agreement and to amendments made to those terms and conditions after the undertaking has been transferred.

Case from April C-336/15

Social policy - Safeguarding of employees’ rights in the event of transfers of undertakings - Collective agreements applicable to the transferee and the transferor - Additional periods of notice granted to dismissed workers

Key aspects of the decision in the economic range:

Safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses. Rights of a financial nature. Service periods to be taken into account in determining length of notice for termination of employment.

In proceedings between, on the one hand, a trade union, and, on the other hand, an employers’ association and ISS Facility Services AB, a company incorporated under Swedish law, concerning the failure to take into account, following a transfer of undertakings, the length of service acquired by four employees with transferors.

Case from April C-217/15

Value added tax - Charter of Fundamental Rights of the European Union - Combine administrative and criminal penalties to punish non-payment of value added tax - Ne bis in idem principle

Key aspects of the decision in the economic range:

Correct collection of VAT and to prevent evasion. Right not to be tried or punished twice.

Criminal proceedings brought for non-payment of VAT, after the imposition of a definitive tax penalty with respect to the same act or omission. Imposition of penalties, whether tax or criminal, concerning natural or legal persons who are legally distinct.

National legislation providing for an administrative penalty and a criminal penalty for the same offences, relating to the non-payment of value added tax. Identity of the accused or penalised person - Ne bis in idem principle.