News

04.05.2018

Tax & Financial Standards New

Tax & Financial Standards New Judgments of the ECJ For April 2018

Expect:

C-154/17 of 10 April 2018

Value added tax (VAT) 

Notion of „second-hand goods“

Notion of „precious metals or precious stones“

                               New judgments                             

            C-580/16 of 19 April 2018

       Value added tax

                                                                                                                                                     Intra-Community acquisition of goods

                                                                                                                                                                     Triangular transaction

 

Key aspects of the decision in the economic range:

Supply of goods dispatched or transported within the European Union. Supply by a taxable person from one Member State to an acquirer in another Member State. 

Place of intra-Community acquisition. Intra-Community acquisition of goods that are the object of a subsequent supply.

Triangular transaction. Situation where the taxable person provides on the invoice the VAT identification number issued to him by a third Member State. Conditions governing the implementation of a simplification mechanism for charging tax on transactions involving three taxable persons identified for VAT purposes in three different Member States.

Dispute concerning the payment of value added tax.

C-645/16 of 19 April 2018

Self-employed commercial agents

Right of the commercial agent to an indemnity or compensation for damage following termination of the commercial agency contract

Exclusion from the right to indemnity in the event of termination of the contract during the trial period provided for in the contract

 

Key aspects of the decision in the economic range:

Coordination of the laws of the Member States relating to self-employed commercial agents. Harmonization measures, prescribed by Directive 86/653/EEC, which apply to the laws, regulations and administrative provisions of the Member States governing the relations between commercial agents and their principals.

Payment of compensation for the loss arising from a termination of a commercial agency contract.

National practice excluding the right to indemnity in the event of termination of the contract by the principal during the trial period provided for in the contract.

Proceedings concerning an application of C for payment of, first, compensation for the loss arising from the termination of a commercial agency contract it had with D and, second, damages it alleges it is owed as a result of the wrongful termination of that contract.

C-8/17 of 12 April 2018

Right to deduct VAT

Period allowed by national law for exercising that right

Deduction of additional VAT paid to the State that was the subject of documents rectifying the initial invoices following a tax adjustment

 

Key aspects of the decision in the economic range:

Origin and scope of right of deduction. Rules governing exercise of the right of deduction. Main principles in the common system of value added tax of Directive 2006/112/EC.

Paid additional VAT to the State, which was the subject of documents rectifying the initial invoices several years after the supply of the goods.

Denial of right to deduct VAT with the motive that the period laid down by that legislation for the exercise of that right started to run from the date of issue of those initial invoices and had expired.

Proceedings between B and F concerning the latter’s refusal to reimburse B the additional value added tax that it had paid following a tax adjustment.

 

C-532/16 of 11 April 2018

 

Limitation of the right to deduct input tax

Supply of land, which is incorrectly subject to VAT

Adjustment of the deduction

Amendment of the information on the initial invoice by the supplier

 

Key aspects of the decision in the economic range:

Obligation to adjust undue VAT deductions in cases where the initial deduction could not be made lawfully, because the transaction that led to it being made was exempt from VAT.

A mechanism for the adjustment of undue VAT deductions.

Conditions for VAT adjustment. General rules on the adjustment of VAT deductions.

Determination of the date on which the obligation to adjust the undue VAT deduction arises and the period for which that adjustment must be made.

Proceedings between the tax authority and SL concerning a revised assessment to tax to which the latter company was subject for the purpose of adjusting the deduction, made by that company, of value added tax which it had paid upon a purchase of land.

 

March

 

C-355/16 of 15 March 2018

Right of establishment

Transfer of the place of residence from a Member State to Switzerland

Taxation of unrealised gains on significant shareholdings in a number of companies established in the Member State of origin at the time of such transfer

Suspension of payment of the tax payable

Concept of ‘self-employed persons’

 

Key aspects of the decision in the economic range:

Freedom of establishment in respect of activities pursued as a self-employed person.

Transfer of the place of residence from a Member State to Switzerland.

Taxation of unrealised gains on significant shareholdings in a number of companies established in the Member State of origin at the time of such transfer.

Transfer of tax residence from the Member State concerned.

Dispute concerning the decision of the French tax authorities, first, to re-assess the amount of unrealised capital gains relating to substantial shareholdings, in the capital of companies established in France, held by Mr Picart and which he had declared at the time of transferring his residence from his State of origin to Switzerland and, second, to make him liable for additional assessments to income tax and social security contributions, with penalties.

 

C-524/15 of 20 March 2018

Charter of Fundamental Rights of the European Union

Failure to pay VAT due

Penalties - Criminal nature of the administrative penalty

Existence of the same offence

Limitations to the ne bis in idem principle

 

Key aspects of the decision in the economic range:

Interpretation of Article 50 of the Charter of Fundamental Rights of the European Union and of Article 4 of Protocol No 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms.

National law which provides for an administrative penalty and a criminal penalty for the same acts, relating to non-payment of VAT.

Right not to be tried or punished twice.

Rules making it possible to ensure that the severity of all of the penalties imposed is limited to what is strictly necessary in relation to the seriousness of the offence concerned.Proceedings concerning offences relating to value added tax.

 

Joined cases C-327/16 & C-421/16 of 22 March 2018

Mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States

Exchange of securities

Capital gains relating to that transaction

Deferred taxation

Capital losses upon the subsequent transfer of securities received

Tax competence of the State of residence

 

Key aspects of the decision in the economic range:

Freedom of establishment.

Change of residence for tax purposes. Mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States.

Mechanism for deferred taxation - Detailed rules for offsetting and calculating the capital loss.

Legislation of a Member State pursuant to which the capital gain resulting from an exchange of securities is established when the transaction occurs, but is taxed in the year in which the event putting an end to the deferred taxation occurs.

Difference in treatment of comparable taxable transactions depending on whether or not the taxpayer has exercised his freedom of establishment in another Member State.

Preservation of the allocation of powers of taxation between the Member States.

Proceedings in relation to the tax authorities’ decisions to tax the capital gains resulting from an exchange of securities upon the subsequent transfer of the securities received.

 

C-533/16 of 21 March 2018

Rules governing the exercise of the right to deduct VAT, charged and paid several years after delivery of the goods in question

Limitation period

Refusal to allow the exercise of the right to a refund due to the expiry of the time limit which should have started to run from the date of supply of the goods

 

Key aspects of the decision in the economic range:

Right to refunds of VAT for taxable persons not established in the Member State of refund.

Detailed rules governing the exercise of the right to deduct VAT and rules for the refund of VAT.

Substantive and formal requirements or conditions, the right to deduct VAT is subject to compliance with.

Tax authoritie’s actions, which refuse the taxable person the right, claimed within the time limit under Directive 2008/9, to be refunded VAT which was charged to it by the supplier on the invoice and [collected] by the supplier before the expiry of the limitation period for relying upon the right under national law.

Imposing of other obligations necessary to ensure the correct collection of VAT and to prevent evasion.

Proceedings concerning the partial refusal of an application for a refund of value added tax due to the expiry of the limitation period.

 

Joined cases C-688/15 & C-109/16 of 22 March 2018

Deposit-guarantee and investor-compensation schemes

Extent of the protection which Directives 94/19/EC and 97/9/EC provides to savers and investors, respectively

Money owed to or belonging to an investor and held on his behalf by an investment firm in connection with investment business

Temporary situations deriving from normal banking transactions - Definitions

 

Key aspects of the decision in the economic range:

Claims for compensation against a public undertaking entrusted, in a Member State, with the deposit-guarantee and investor-compensation schemes.

Money transferred from personal bank accounts to an account opened in the name of a credit institution and to be used as payment for financial instruments issued by that institution.

Insolvency of that institution before the transferable securities in question are issued.

Definitions of „normal banking transaction“, „deposit“ and „investment firm“, „ orders „au nom de clients“ and „pour le compte de clients“

Proceedings concerning the compensation that the complainants seek in respect of funds transferred to a bank for subscribing to future shares and bonds which that credit institution proposed to issue but which, because of its insolvency, were not issued.