News

29.06.2018

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

     Tax & Financial Standards New

Judgments of the ECJ

For June

New Cases

           

С-250/17 of 6 June 2018

Judicial cooperation in civil matters - Insolvency proceedings - Effects of insolvency proceedings on lawsuits pending concerning an asset or a right of which the debtor has been divested - Concepts of ‘lawsuit pending’ and „assets or rights of which the debtor has been divested“

Key aspects of the decision in the economic range:

 

Substantive proceedings for the recognition of the existence of a debt.

A lawsuit pending before a court of a Member State seeking an order that a debtor pay a sum of money due under a contract for the provision of services and pay monetary damages for failure to comply with that contractual obligation, in the event that (i) the debtor was declared insolvent in insolvency proceedings opened in another Member State; and (ii) the declaration of insolvency applies to all of the debtor’s assets.

Concepts of ‘lawsuit pending’ and „assets or rights of which the debtor has been divested“.

Proceedings regarding the payment of a sum due by way of remuneration for services provided to E before the latter was declared insolvent and regarding damages for the loss suffered due to the non-performance of a contract for the provision of services.

 

С-421/17 of 13 June 2018

Taxable transactions - Supply of goods for consideration - Transfer, by a public limited company of a building to a shareholder as the counterpart to the buy-back of its shares - Concepts of „economic activity“ and „supply of goods for consideration“

Key aspects of the decision in the economic range:

Taxation of a supply of goods for consideration.

Right of ownership of immovable property as consideration for the buy-back, by that limited company, under a mechanism for the redemption of shares, of shares held in its share capital by that shareholder.

Concepts of „economic activity“ and „supply of goods for consideration“.

Proceedings concerning a tax ruling issued to company P by the Minister for Finance, by which the Minister held that a transaction whereby P intends to transfer property to a limited liability company, holder of shares issued by P as payment for those shares, under a buy-back procedure permitted by national legislation, is subject to value added tax (VAT).

 

С-665/16 of 13 June 2018

Value added tax - Supply of goods for consideration - Transfer of the right to dispose of tangible property as owner - Transfer of the ownership of property belonging to a municipality to the Public Treasury in return for the payment of compensation for the purposes of the construction of a national road - Concepts of “supply of goods” and “compensation”

Key aspects of the decision in the economic range:

Transfer of the ownership of property for compensation by order of a public authority.

A transaction subject to VAT in a situation, where the same person simultaneously represents the expropriating authority and the municipality that is the subject of the expropriation and where the latter continues the practical management of the relevant property.

Concepts of “ supply of goods ” and “compensation”.

Proceedings concerning the liability to value added tax (VAT) of a transaction in which ownership of immovable property belonging to the Municipality was transferred, in accordance with national legislation and in return for the payment of compensation, to the Public Treasury for the purposes of the construction of a national road.

 

С-108/17 of 20 June 2018

Exemptions from VAT on importation - Importation followed by an intra-Community supply - Evidence of dispatch or transport of the goods to another Member State - Transport under an excise duty suspension arrangement - Transfer to the purchaser of the right to dispose of goods as owner - No obligation of the competent authority to help the taxable person collect the necessary information to show that the conditions for exemption are satisfied

Key aspects of the decision in the economic range:

VAT Exemption for importation followed by an exempt intra-Community supply.

Goods dispatched or transported from a third country to a Member State other than the Member State of arrival.

Communication by the importer of the VAT registration number of the purchaser in the Member State of destination.

Formal or substantive requirement for entitlement to the import exemption. Concept and conditions of the transfer of the right to dispose of the goods to the purchaser.

Sufficient documentation to prove dispatch of the goods to another State Member. Acceptance by the competent authority of declarations by the importer.

Good faith of the importer. Legal certainty.

Possible duty of the competent authority to help a taxable person to collect the information necessary to prove compliance with the conditions of exemption.

Proceedings concerning the exemption from value added tax of imports of fuel from Belarus into Lithuania followed by dispatch or transport of the fuel to other Member States.

 

С-480/16 of 21 June 2018

Free movement of capital and liberalisation of payments - Dividends paid to resident and non-resident undertakings for collective investment in transferable securities – Taxation and tax exemption for dividends

Key aspects of the decision in the economic range:

Taxation of dividends paid to undertakings for collective investment in transferable securities (UCITS). Dividends paid by companies resident in one Member State to non-resident UCITS. Tax exemption for dividends paid by companies resident in one Member State to resident UCITS.

Right of a Member State to exercise its powers of taxation in relation to activities carried out in its territory. Legislation of a Member under which the dividends distributed by a company resident in that Member State to a non-resident UCITS are subject to withholding tax, while dividends distributed to a UCITS resident in that same Member State are exempt from such tax.

Coherence of the tax system. Need to ensure a balanced allocation between the Member States of the power to impose taxes. Safeguarding the coherence of the tax system.

Proceedings concerning claims for repayment of withholding tax levied on dividends paid by companies resident in Denmark.

May

C-370/16 of 30 May 2018

Structural Funds - Third-party attachment proceedings brought against an authority of a Member State in relation to sums allocated to a beneficiary as part of a programme funded by the European Social Fund

Key aspects of the decision in the economic range:

EU financial assistance.

Privileges and immunities of the European Union.

General rules governing the Structural Funds.

Prior authorisation from the Court when a third party initiates attachment proceedings seeking to attach a claim against a Member State body that owes a corresponding debt to the debtor of the third party where that debtor is a beneficiary of funds granted.

C-190/17 of 31 May 2018

Controls of cash entering or leaving the European Union - Third-country national transporting a significant amount of undeclared cash in his luggage - Penalties - Compliance with the principle of proportionality

Key aspects of the decision in the economic range:

A control system on cash entering or leaving the Community.

National measures to control cash movements within the Community. Compliance with the principle of proportionality.

Legislation of a Member State, which provides that the failure to comply with an obligation to declare significant sums of cash entering or leaving the territory of that State is punishable with a fine calculated by taking into account certain aggravating circumstances, and which may be up to double the undeclared amount.

Proceedings concerning the fine imposed to Mr. Z for failure to comply with the obligation to declare certain cash sums on leaving Spanish territory.

 

C-382/16 of 31 May 2018

Corporation tax - Correction of the taxable income of the resident company - Advantage granted gratuitously by a resident company to a non-resident company to which is it linked by a relationship of interdependence - Calculation of the taxable revenue of companies - Restriction on the freedom of establishment

Key aspects of the decision in the economic range:

Direct taxation.

Application of transfer pricing in relation to transactions between resident and non-resident companies. Аdjustment of taxation of transactions between related companies to reflect arm’s-length terms for a transaction between unrelated parties.

Opportunity for the resident taxpayer to present evidence that the terms were agreed on for commercial reasons resulting from its status as a shareholder of the company.

Proceedings relating to the calculation by a Tax Office of the corporation tax and the basis of calculation for a company’s business tax for a tax year.

 

C-660/16 of 31 May 2018

Payment made on account - Payment on account for the purchase of an item not followed by delivery of that item

Key aspects of the decision in the economic range:

Deduction of VAT relating to a payment made on account. Uncertainty regarding the chargeable event.

Insolvency of the supplier. Supplier’s legal representatives convicted of fraud.

Adjustment of deductions. Reimbursement of the VAT unduly paid.

National laws or practices making adjusting a deduction of VAT relating to a payment on account for the delivery of an item conditional upon that payment being refunded by the supplier.

Proceedings concerning offices’ refusal to allow individuals to deduct the input value added tax (VAT) paid in relation to payments made on account for the delivery of combined heat and power units that were not, ultimately, delivered.

 

C-542/16 of 31 May 2018

Advice given in insurance mediation - Classification of the activity of an insurance agent

Key aspects of the decision in the economic range:

Advice given in insurance mediation concerning the placement of capital in the context of capital life assurance. Delimitation between insurance mediation activities and investment advice.

Classification of the activity of an insurance agent in the absence of his intention to conclude a genuine insurance contract. Protection of customers against the inability of the insurance intermediary to transfer the premium to the insurance undertaking. Customer protection  in relation to insurance-based investment products.

Proceedings concerning the loss of sums invested in products in the context of capital life assurance taken out with insurance mediation companies which had taken out professional indemnity insurance.

Expect:

C-295/17

Case C 295/17

(Reference for a preliminary ruling - Common system of value added tax - Scope - Taxable transactions - Non-taxable supplies - Distinction of non-taxable damages for the payment of 'indemnity'

 

C-517/16

"Directive 94/19 / EC on Deposit Guarantee Schemes - Determination of the unavailability of a deposit - Liability of a Member State for damage caused by an infringement of European Union law - Legal remedies"

C-664/16

 

(Reference for a preliminary ruling - Common system of value added tax (VAT) - Directive 2006/112 / EC - Articles 167, 168, 178, 179 and 273 - Principle of neutrality of VAT - Right to deduct input tax - requirements - Formal requirements - Lack of invoices'