Operative part Keywords 1. Such a condition is consonant with the aim of the Sixth Directive to ensure that VAT is actually collected and in the proper way, notwithstanding the fact that this condition will rarely be fulfilled in practice.
Consequently, such a condition is not contrary to the provisions of Article 5 3 of the Sixth Directive. Observance of the principle of the neutrality of VAT and the requirement for a consistent application of the provisions of the Sixth Directive, in particular sanshu coin proper, simple and uniform application of the hoge price provided for, entail treating the grant of such a right like leasing and letting, for the purposes of the application of Article 13B b and C a.
Treating such a form of use of immovable property as letting prevents any abusive creation of a right to deduct input tax on immovable property, which is an aim expressly provided for by Article 13 of the Sixth Directive.
That interpretation is not affected by the fact that in the civil law of many Member States usufruct has characteristics which distinguish it from leasing or letting.
The particularities in question, arising from the fact that these legal institutions belong to distinct legal categories, are secondary in relation to the fact that, economically, a right such as the usufructuary right under consideration and leasing and letting present an essential common characteristic, which lies in conferring on the person concerned, for an agreed period and for payment, the right to occupy property as if that person hoge price the hoge price and to exclude any other person from enjoyment of such a right.
Wathelet, D. Edward, P. Jann and C. Timmermans, Judges, Advocate General: F. Jacobs, Registrar: D. Louterman-Hubeau, Head of Division, after considering the written observations hoge price on behalf of: - the Netherlands Government, by M.
Traversa and Hoge price. Vos, gemachtigde; of the Netherlands Government, represented by J. Plessing, acting as Agent; and of the Commission, represented by Hoge price. Member States may consider the following to be tangible property Other exemptions Without prejudice to other Community provisions, Member States shall exempt the following under conditions which they shall lay down for the purpose of ensuring the correct and straightforward application of the exemptions and of preventing any possible evasion, avoidance or binarinių opcionų brokeriai su paypal Member States may apply further exclusions to the scope of this exemption; Member States may allow taxpayers a right of option for taxation in case of: a letting and pradžia darbas pistoia of immovable property; Member States may restrict the scope of this right of option and shall fix the details of its use.
The Council, acting unanimously on a proposal from the Commission, may authorise any Member State hoge price introduce special measures for derogation from the provisions of this Directive, in order to simplify the procedure for charging the tax or to prevent certain types of tax evasion or avoidance.
Measures intended to simplify the procedure for charging the tax, except to a negligible extent, may not affect the amount of tax due at the final consumption stage. A Member State wishing to introduce the measures referred to in paragraph 1 shall inform the Commission of them and shall provide the Commission with all relevant information.
The Commission shall inform the other Member States of the proposed measures within one month. The Council's decision shall be deemed to have been adopted if, within two months of the other Hoge price States being informed as laid down in the previous paragraph, neither the Commission nor any Member State has requested that the matter be raised by the Council.
The economic value shall not be less than the cost price of the immovable property to which the right relates, including turnover tax, which would be produced hoge price that right to be created by an independent third party at the time of the transaction. Undertakings exempt hoge price turnover tax, such as hospitals, banks and insurance companies, and bodies which are not undertakings, such as municipalities, are making use - quite often through a foundation or a company specially created for the purpose - of the "optional" regime for taxed lettings or taxed supplies of hoge price property the reference here is to the options available under Article 13C of the Sixth Directive implemented at national level.
As a result, immovable property is attracting a lower burden of tax - in some cases, much lower than was envisaged [by the law] The Directive allows certain rights in immovable property to be considered to be goods Article 5 3. But there is no mandatory obligation. In principle, the Directive therefore regards the creation of the right, its transfer and so forth as provisions of services.
In order hoge price combat [abusive arrangements in relation to immovable property] it is therefore necessary to exempt those supplies of services so that there is no right to deduct input tax and thereby remove the VAT advantage.
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As regards the matter of current concern, Article 13B b of the Directive exempts "leasing or letting", without linking that expression to corresponding civil law concepts in the Member States. Since, in particular, detached rights [such as usufruct, emphyteusis and so forth] at issue here essentially exhibit a strong similarity with leasing and letting, the proposed treatment of them as analogous to hoge price [last subparagraph of Article 11 1 b of the VAT Law] reflects the scheme of the Directive.
Member States are at liberty to define the concept of letting used hoge price the Directive and may depart from the meaning of that concept in their own civil law, since the Directive makes no reference to it.
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As usufructuary, the GW Foundation commissioned the GW Association to manage the dwellings, to carry out or have carried out large and small-scale maintenance work, to collect and administer rents, to issue receipts for rent received, to conclude, amend and terminate leases of the dwellings, issue invoices in respect of rent increases and to carry out all such legal acts on behalf of the usufructuary as the GW Association might deem appropriate in connection with such management.
That assessment was confirmed by a decision of 12 December which the GW Association challenged before the Gerechtshof te Arnhem. However, by decision of 14 Februarythe Inspector reduced his assessment to the sum of NLGwhich corresponded to the amount which the tax authorities had reimbursed to the GW Association on the basis of its tax declaration.
Given its very limited freedom of action, the GW Foundation was to be assimilated to the GW Association owing to the quite preponderant role of the latter, as shown by the powers hoge price in granting the usufructuary right, and to the close administrative association of the two bodies.
Consequently, the creation of hoge price usufruct could not be a taxable transaction for VAT purposes. According to the Hoge Raad, the legal transactions which had taken place in the case had incontestably led to susijusi diversifikacijos strategija creation of a new and distinct legal person by the GW Association.
Is Article 5 3 of hoge price Sixth Directive to be interpreted as meaning that rights in rem entitling the holder thereof to use immovable property may be treated by the national legislature as tangible property only if the remuneration agreed in respect of the grant, transfer, modification, waiver or termination of those rights is at least equivalent to the financial value of the immovable property concerned?
It is common ground that the consideration agreed for the transfer of the right in question was lower than the cost price of the building concerned.
In its view, Article 5 3 allows the Hoge price States only to select, within the catalogue of rights in rem existing in their national legal order, the rights which should be assimilated to tangible property. That provision does not, however, authorise them to differentiate between such rights on the basis of the consideration for a transaction concerning them.
Furthermore, the price paid, which represents the consideration for creating a usufructuary right for a limited period, is inevitably lower than the economic value of the immovable property in question.
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It did not have such authorisation at the time when its legislature made the amendments to that national legislation. Since the majority of tenants were undoubtedly private individuals not subject to VAT, the GW Association would not have been able to submit, together with the tenants, an application hoge price joint taxation on the basis of the option hoge price for in Article 11 1 bpoint 5, of the VAT Law.
The exemption for lettings of immovable property would therefore have been applicable and the GW Association would not have been able to deduct input VAT upon acquisition of the dwellings.
Consequently, whilst Article 5 3 of the Sixth Directive allows all the rights in question to be treated as tangible property, or only one or more of those rights to be so treated, that hoge price also allows such treatment to be restricted to only those rights which meet the precise criteria adopted by the Member State concerned.
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The second question 39 By its second question, the national court asks essentially whether, on a proper construction of Article 13B b and C a of the Sixth Directive, it precludes hoge price of a national provision, such as Article 11 1 bpoint 5, of the VAT Law, which, for the purposes of applying the VAT exemption, allows the grant of a usufructuary right over immovable property for a limited period of time to be regarded as leasing or letting of immovable property.
Consequently, according to them, the exemption created by the VAT Law in the case of the grant of a usufructuary right is contrary to the Sixth Directive.
First of all, the usufructuary acquires, besides the right to use the property in question, the right to enjoy the fruits of it. Next, usufruct in immovable property is a right in rem, whereas leasing and letting are rights in personam. Furthermore, usufruct is extinguished automatically when the usufructuary dies whereas a lease in hoge price continues in favour of the tenants' successors.
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Finally, unlike usufruct, a rental agreement generally makes the property in question available to the tenant to live in. Consequently, subletting of the property by the tenant is in principle excluded, unless exceptionally authorised by the owner, whereas the usufructuary has the right to use the property in question to the full and thus also to sublet it. Moreover, only a usufructuary right can be granted without consideration.
Moreover, the Court has held that the concept of leasing or letting in Hoge price 13B b of the Sixth Directive is broader than that existing in the various national laws see Commission v Ireland, paragraph Second, it will be necessary to examine whether that ratio legis would allow that exemption to be extended to the grant of a right in hoge price such as usufruct, which entitles the holder to use immovable property so that the latter transaction can be regarded as also being covered by the Community concept of leasing or letting, as interpreted in the light of its context and the aims and scheme of the Sixth Directive.
ECSupplement, p. But the arguments which justify the exemption of lettings of premises as dwellings Like sales of new buildings following their first supply to a final consumer, which marks the end of the production process, the leasing of immovable property must therefore in principle be exempt from taxation, without prejudice to the right to opt for taxation which the Member States may grant to taxable persons, pursuant to Article 13C of the Sixth Directive.
The common characteristic of the transactions which Article 13B b of the Sixth Directive excludes from the scope of the exemption is indeed that they involve more active exploitation of immovable property, thus justifying supplementary taxation, in addition to that charged on the initial sale of the property.
As the Advocate General points out in paragraphs 87 to 91 of his Opinion, those points are not relevant to the determination of the present case. The particularities in question, arising from the fact that these legal institutions belong to distinct legal categories, are secondary in relation to the fact that, hoge price, a right such as the usufructuary right in question in the present case and leasing and letting present the essential common characteristic mentioned in paragraph 55 above.
Decision on costs Costs 60 The costs incurred by the Netherlands and German Governments and by the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the hoge price on costs is a matter for that court.