Temat: towar zakupiony w cenie promocyjnej, przekazany nieodpłatnie
Poniżej (trochę długi ale nie chciałem ciąć) fragment z komenatarza B. Terry i J. Kajus dotyczący podstawy opodatkowania nieodpłatnych przekazań. Wydaje się, że jednak odpada hipoteteczna cena, za jaką można dzisiaj nabyć przekazywnay towar na rynku.
7.3.2. Private use and internal supplies of goods (Art.74)
Based on Article 16 RVD, the application by a taxable person of goods forming part of his business assets for his private use or for that of his staff, or their disposal free of charge or, more generally, their application for purposes other than those of his business, shall be treated as a supply of goods for consideration, where the VAT on those goods or the component parts thereof was wholly or partly deductible.
Article 18 deals with so-called internal supplies. Member States may treat each ofthe following transactions as a supply of goods for consideration:
(a) the application by a taxable person for the purposes of his business of goods produced, constructed, extracted, processed, purchased or imported in the course of such business, where the VAT on such goods, had they been acquired from another taxable person, would not be wholly deductible;
(b) the application of goods by a taxable person for the purposes of a non-taxable area of activity, where the VAT on such goods became wholly or partly deductible upon their acquisition or upon their application in accordance with point (a);
(c) with the exception ofthe cases referred to in Article 19, the retention of goods by a taxable person, or by his successors, when he ceases to carry out a taxable economic activity, where the VAT on such goods became wholly or partly deductible upon their acquisition or upon their application in accordance with point (a).
The generał definition of Article 73 RVD does not apply when no consideration is received, for example in the cases of private use or of an internal supply.
Article 74 RVD deals with thetaxable amount ofthe above mentioned supplies providing:
Where a taxable person applies or disposes of goods forming part of his business assets, or where goods are retained by a taxable person, or by his successors, when his taxable economic activity ceases, as referred to in Articles 16 and 18, the taxable amount shall be the purchase price ofthe goods or of similar goods or, in the absence of a purchase price, the cost price, determined at the time when the application, disposal or retention takes place.
The legislative history is as follows. Even the Second Directive provided that the taxable amount is, in the case ofthe transactions referred to in Article 5(3)(a) and (b) [private use and internal supply], the purchase price ofthe goods or of
like goods or, if there is no purchase price, the cost price.
Article 12(A)(1 )(b) of the Proposal for a Sixth Directive used a different terminology, providing that the taxable amount should be:
in respect of supplies under Articles 5(3) and 7(2), and supplies by way of exchange, and, generally, where the price expressed as a sum of money is not the sole consideration for the supply of goods or setvices, the 'open marketvalue' ofthe subject ofthe relevant supply.
'Open market value' of goods or services means the amount which a customer at the marketing stage at which the supply takes place would have to pay to a supplier at arm's length within the territory of the country at the time ofthe supply, under conditions of fair competition, to obtain the goods or setvices in question.
The Explanatory Memorandum to the Proposal noted the following:
Where the price is not the sole consideration (for example transactions in which the supplier receives, over and above the price, other 'advantages', or where the tax authorities can prove that the price is not a true one), the taxable amount will have to be estimated by applying the mere theoretical notion of the 'open-market value'.
The purpose of this Article is not to change the substance of the provisions in this connection of the Second Directive, but simply to confirm on paper an existing situation of fact. Given that in virtually all cases the 'consideration' referred to in the Second Directive is in fact the price, it seemed more logical to provide that the taxable amount should be determined primarily by reference to the 'price' and failing this by reference to 'open market val u e'.
For, what has to be taxed is the actual cost to the consumer of goods and setvices and not a theoretical value put upon them.
The European Parliament proposed an amendment in which a distinction was made between supplies of goods and of services which stated asfollows:
(b) in respect of supplies under Article 5(3), the purchase price ofthe goods supplied or goods of the same kind or where the purchase price is not known, the cost price;
(c) in respect of supplies specified in Article 7(2) and, generally, where all or part of the consideration is not indicated by the taxable person, the 'open market value' ofthe subject of the relevant supply.
The definition of 'open market value' is not changed.
According to the Working Documents:
[In addition,] it is not entirely satisfactory to base calculations on the open market value as proposed in (b) sińce the transaction would then have to take place under conditions of 'fair competition' - which would usually be difficult to judge. ... The aim of the amendment is to split paragraph 1b of the Commission's proposal. The new sub-paragraph b would also confirm the provisions of the Second Directive. When an entrepreneur consumes his own goods or setvices in private it would seem fairer to base the taxable amount on the purchase price or cost price rather than on the open market value, for both practical and psychological reasons. The new sub-paragraph (c) covers transactions as referred to in Article 7(2) where the 'open market value' applies.
The EESC commented as follows:
Article 12 defines the taxable amount. Paragraph A(1)(b) introduces the concept of 'open market value' of goods or services where the price expressed as a sum of money is not the sole consideration for the supply of goods or sen/i ces (own consumption of goods and sen/ices, barter transactions etc).
The committee unanimously recognised that the 'open market value' is a theoretical concept which is difficult to define, so that it will doubtless lead to disputes, especially in view of the particular difficulties involved in the self-supply of land (Article 5(3)).
However, no alternative solution is suggested.
The committee proposes that the concept of 'open market value' should not be applied in all cases such as, for example, delay in payment where the price agreed upon by the interested parties is known.
In accordance with the wishes of the European Parliament the Commission amended its Proposal for a Sixth Directive asfollows:
(b) in respect of supplies under Article 5(3), the purchase price ofthe goods or of similar goods or, in the absence of a purchase price, the cost price, calculated at the time of supply;
(c) in respect of supplies under Article 7(2) and (4), the 'open market value' ofthe subject of the relevant supply.
'Open market value' of setvices means the amount which a customer at the marketing stage at which the supply takes place would have to pay to a supplier at arm's length within the territory of the country at the time
of the supply, under conditions of fair competition, to obtain the services in question.
In the Explanatory Memorandum to the amendmentsthe Commission noted thefollowing:
Moreover, it seemed necessary to restrict to genuinely exceptional cases the application of the 'open market value' criterion, as defined by subparagraph (b) of the original version, which refers to a supply made 'under conditions of fair competition' which is often difficult to appraise.
This is why the concept now defined in subparagraph (a), which deals with 'normal' supplies of goods and sen/i ces, is based on the actual consideration, a standard which was already used in the Second Directive. Therefore the taxable amount must include not only amounts of money received or receivable but also the value of any goods or setvices received or receivable, together with anything that may be granted to the supplier in respect of the supply in question by any person other than the recipient of the supply. ... In paragraph 1(b), which concerns taxable applications to own use and other transactions which are deemed to be supplies by Article 5(3) but for which obviously there is no consideration, the new text lays down the same criteria, which were included already in the Second Directive, stating that the prices must be calculated at the time of the supply. It is in fact more appropriate, as much for practical as for psychological reasons, that the taxable amount should be taken to be the purchase price or cost price, rather than the open market value.
In the new subparagraph (c) it is provided that for transactions which are deemed to be supplies of sen/i ces by virtue of Article 7(2) and for those referred to in Article 7(4), the taxable amount is to be the 'open market value', which is defined in subparagraph (c). This is an ancillary criterion sińce, in the case of these transactions there is neither a consideration, nor a purchase price nor a cost price.
In conformity with the amended proposal the Council adopted Article 11(A)(1)(b)to (d) providing that the taxable amount is:
(b) in respect of supplies referred to in Article 5(6) and (7) [private use and internal supplies], the purchase price ofthe goods or of similar goods or, in the absence of a purchase price, the cost price, determined at the time of supply;
(c) in respect of supplies referred to in Article 6(2) [private use], the fuli cost to the taxable person of providing the sen/ices; and
(d) in respect of supplies referred to in Article 6(3) [self-supply], the open market value of the services supplied.
See nowArticles 74, 75, and 77 RVD
Case C-20/91 (P. de Jorig Staatssecretaris i/an Financien)
In the context of self-supplies and private use the following case should be mentioned. The following questions were raised for decision by the ECJ:
1. Is Article 5(6) ofthe Sixth Council Directive of 17 May 1991 on the harmonisation ofthe laws ofthe member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment to be interpreted as meaning that a taxable person (a building contractor) who acquires land solely for his private use and subsequently erects on that land in the pursuit of his business a building (a dwelling) and finally puts the building together with the land on which it stands and possibly the surrounding land to his private use has applied goods forming part of his business assets for his private use within the meaning of the Directive not only as regards the building, but as regardsthe building together with the land on which it stands and possibly the surrounding land?
2. Isthe condition laid down in Article 5(6) ofthe Sixth Directive regarding the assimilation ofthe application of goods forming part of business assets for private use to supply that the value added tax on the goods in question or the component parts thereof have been wholly or partly deductible to be understood as meaning that where goods forming part of business assets have been applied for private use in the form of immovable property, consisting of a building and the land on which it stands and possibly the surrounding land, if there is no deductibility as regards the land there is no supply of goods either as regards the immovable property as a whole or as regards a part thereof, that is, the building?
3. If the answer to the second question is that the whole immovable property constitutes a supply of goods as provided for in Article 5(6) of the Sixth Directive, is Article 11(A)(1)(b) of the Directive to be interpreted as meaning that the taxable amount laid down therein must be based on the cost price of the whole immovable property, that is to say including the cost price of the land, or is the amount limited to the part of the cost price with regard to which value added tax is deductible?
In its decision the ECJ pointed out in that where ataxable person acquired goods exclusively for private purposes, he acted in a private capacity and not as a taxable person within the meaning ofthe Sixth VAT Directive. The various provisions ofthe Directive concerning the acquisition of goods by an undertaking for that reason did not apply.
Sofar as concerned the taxation of land owned by a building contractor in a private capacity and on which, in the course of his professional activities, he had constructed a dwelling for himself, the ECJ ruled that it followed from the foregoing that such land had never belonged to the assets ofthe undertaking and could for that reason never have been applied within the meaning of Article 5(6) ofthe Sixth VAT Directive. Pursuant to Article 11(A)(1)(b) ofthe Sixth VAT
Di recti ve, the basis of assessment was soleiy the vaiue ofthe dwelling constructed, not the value ofthe land. The ECJ ruled:
Article 5(6) of the Sixth Council Directive (77/388/EEC) of 17 May 1977 on the harmonisation ofthe laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment is to be interpreted as meaning that when a taxable person (a building contractor) acquires land soleiy for his private use but erects on that land in the pursuit of his business a dwelling for his own use only the house, and not the land, is to be regarded for the purposes of that provision as having been applied for his private use.
Joined Cases C-322/99 and C-323/99 (Firianzamt Burgdorf v. Hans-Georg Fischer and Finanzamt Dusseldorf- Mettmann v. Klaus Brandenstein)
Fischer
Reference has been made to the Court by a judgement ofthe Bundesfinanzhof of 15 July 1999, for a preliminary ruling on the following questions of interpretation of Directive 77/388/EEC:
(1) Do subsequent (deductible) bodywork repairs and respraying work carried out on a car (on the purchase of which VAT was not deductible) mean, on transfer from the business,
(a) that the car must be viewed as goods on which VAT was partly deductible under Article 5(6) ofthe Directive, or
(b) that the subsequent expenditure isto be viewed as a component, on which VAT was deductible, ofthe goods?
(2) If Question (1) is answered in the affirmative, what are the business goods disposed of which are to be taxed under Article 5(6) of the Directive:
(a) the car including the work carried out on it (bodywork repairs and respraying) or
(b) only the work carried out (bodywork repairs and respraying)?
(3) If Question (2) is answered in the affirmative: Is the basis of assessment under Article 11A(1)(b) of the Directive the purchase price of the car (or an equivalent car) together with the cost of repairs each determined as at the time of disposal, or only the price ofthe (tax deductible) repairs carried out?
(4) What is the relationship between Article 5(6) and Article 5(7)(c) of the Directive?
(5) If the answer to Question (1) is to the effect that the subsequent (tax deductible) work carried out (bodywork repairs and respraying) is not subject to tax on disposal of the goods (car) under Article 5(6) of the Directive, is the deduction of inputtax on these services to be adjusted under Article 20(1)(b) of the Directive?
Brandenstein
Reference has been made to the Court of Justice ofthe European Communities by a judgement of the Bundesfinanzhof of 15 July 1999, which was received at the Court Registry on 27 August 1999, for a preliminary ruling in the case of Finanzamt Dusseldorf-Mettmann v. Klaus Brandenstein on the following question:
Under the first sentence of Article 5(6) of Directive 77/388/EEC, the application by a taxable person of goods forming part of his business assets for his private use, where the value added tax on the goods in question or the component parts thereof was wholly or partly deductible, is to be treated as supplies made for consideration.
1. Is this provision applicable where, although VAT on the goods themselves was not deductible, VAT was deductible on the services or supplies which the taxable person ordered or received in respect of those goods after their acquisition?
2. What does the term 'component' mean in the context of this provision?
3. How is the basis of assessment to be determined for a disposal, where VAT is wholly or partly deductible, not on the goods disposed of, but on some of their components?
4. Is the deduction of inputtax which a taxable person has claimed in respect of services or supplies for goods on the purchase of which VAT was not deductible to be adjusted under Article 20 of Directive 77/388/EEC if the first sentence of Article 5(6) of Directive 77/388/EEC is not applicable?
On 14 December 2000 Advocate General Jacobs delivered his opinion. It is his view that the questions referred should be answered asfollows:
(1) The provisions of Article 5(6) of the Sixth VAT Directive relating to component parts apply only where goods are supplied within the meaning or Article 5(1) (not setvices), where those goods become an integral part ofthe goods in question by losing their physical and economic distinctiveness and where there is a lasting increase in the total value ofthe goods.
(2) Where tax-deductible component parts have been integrated into goods, charge to tax in respect of the application for private use arises with regard to the goods and the component parts taken as a whole.
(3) Where charge to tax under Article 5(6) arises as a consequence of the integration into goods of tax-deductible component parts, the taxable amount under Article 11(A)(1)(b) of the Directive must be determined by reference to the price ofthe goods and their component parts taken together.
(4) In the absence of a special national provision implementing Article 5(7)(c) of the Directive the taxation of the application for private use of goods after the cessation of trading is governed exclusively by Article 5(6) of the Directive.
(5) Deductions on work carried out on goods after their acquisition may be adjusted under Article 20(1 )(b) of the Directive on the occasion of the transfer of those goods to private use if on the basis of the supplies in question the provisions of Article 5(6) relating to component parts are not applicable. Adjustments are however possible only in so far as the value of the work in question has not been consumed within the business before the goods were transferred to private use.
On 17 May 2001 the ECJ observed with regard to the third question:
Ouestion 3 in Cases C-322/99 and C-323/99, on thetaxable amount pursuantto Article 11A(1)(b) ofthe Sixth Directive
79. By Ouestion 3 in Cases C-322/99 and C-323/99, the national court is essentially asking whether, in circumstances such as those which gave rise to the main proceedings, the taxable amount for the purposes of Article 11A(1)(b) ofthe Sixth Directive i s to be determined by reference to the purchase price ofthe vehicle or a similar vehicle at the time of allocation plus the price ofthe repairs which resulted in 'component parts' within the meaning of Article 5(6) of that directive or whether it consists soleiy of the price paid for such repair work the input VAT on which was deductible.
80. The reference to the purchase price, determined at the time of allocation, may appear to be contradictory where goods are by definition acquired before they are allocated; however, it is taken from the actual wording of Article 11A(1)(b) of the Sixth Directive. It is necessary to specify that that refers to the residual value of the goods at the time of allocation.
81. The German Government submits that the taxable amount referred to in Article 11A(1)(b) of the Sixth Directive is made up of the purchase price of the vehicle or a similar vehicle and the price of the repairs, determined at the time of allocation. Since the taxable amount is calculated on prices determined at the time of allocation, it must necessarily include the expenditure incurred in maintaining the value ofthe goods and any increase in their value while they formed part of the assets ofthe business.
82. Similarly, the Commission considers that, if it follows from the assessment of the facts that 'component parts' within the meaning of Article 5(6) of the Sixth Directive were added to business goods on which no input VAT was deductible on acquisition, the taxable amount where those goods are allocated consists of the price of similar goods at the time of allocation, including the component parts which have been added to the goods.
83. The Greek Government submits that the taxable amount should be determined separately for each element. To that end, it is necessary first to determine the value of the goods at the time of allocation, then to calculate the VAT, the amount of which depends on the relationship between the expenditure in respect of which input VAT was deductible and the total price of acquisition ofthe goods.
Findings of the Court
84. In view of the answer given in paragraph 78 above, the answer to Ouestion 3 in Cases C-322/99 and C-323/99 must be that in the case of an allocation which is taxable under Article 5(6) of the Sixth Directive, in particularthe allocation of goods (in this case a motor vehicle)
- which were acquired without any entitlement to deduct, and
- on which work giving entitlement to deduct has been carried out, resulting in the incorporation of 'component parts' in the goods,
the taxable amount for the purposes of Article 11 A(1 )(b) of the Sixth Directive must be determined by reference to the price, at the time of the allocation, of the goods incorporated in the vehicle which constitute component parts of the goods allocated, within the meaning of Article 5(6) of that directive.
The ECJ found:
1. Where a taxable person allocates for purposes other than those of the business goods (in this case a motor vehicle) on the acquisition of which value added taxwas not deductible and which, after being acquired, had value-added-tax-deductible work done on them, the value added tax payable under Article 5(6) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation ofthe laws ofthe Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment applies soleiy to the "component parts" of the goods in respect of which there was entitlement to deduct, namely the components which definitively lost their physical and economic distinctiveness when they were incorporated in the vehicle, after its purchase, following transactions involving supplies of goods which led to a lasting increase in the value of the vehicle which has not been entirely consumed atthe time ofthe allocation.
2. In the case of an allocation which is taxable under Article 5(6) of the Sixth Directive 77/388, in particular the allocation of goods (in this case a motor vehicle)
- which were acquired without any entitlement to deduct,
- on which work giving entitlement to deduct has been carried out, resulting in the incorporation of 'component parts' in the goods,
the taxable amount for the purposes of Article 11(A)(1)(b) of Sixth Directive 77/388 must be determined with reference to the price, at the time of the allocation, of the goods incorporated in the vehicle which constitute component parts of the goods allocated, within the meaning of Article 5(6) of that directive.
3. Where work which is carried out on goods (in this case a motor vehicle) after their purchase and on which input value added tax was deducted does not give rise to liability for value added tax pursuantto Article 5(6) of Sixth Directive 77/388 when the vehicle is allocated, the value added tax deducted in respect of that work must be adjusted in accordance with Article 20(1 )(b) of that directive if the value of the work in question has not been entirely consumed in the context of the business activity of the taxable person before the vehicle is allocated to his private assets.
Case C-7/02 (Holin Groep B. V. c.s. Staatssecretaris van Financien f State Secretary for Finanse))
Reference has been made to the Court of Justice ofthe European Communities by judgment ofthe Hoge Raad der Nederlanden (Supreme Court of the Netherlands) for a preliminary ruling in the case of Holin Groep B.V. c.s. against Staatssecretaris van Financien (State Secretary for Finance) on the following question:
1. Do Articles 5(7)(a) and 17 ofthe Sixth Directive or European law principles ofthe protection of legitimate expectations and of legał certainty preclude - in a case not involving fraud or abuse or any question of a change in planned use, as mentioned in paragraphs 50 and 51 of the judgment of the Court of Justice in Schlo&stra&e - the charging of tax on the basis of the abovementioned Article 5(7)(a) when a taxable person has deducted VAT which he has paid for goods delivered, or setvices provided, to him with a view to the planned leasing subject to VAT, of a particular immovable property, on the simple ground that, as a result of a legislative amendment, the taxable person no longer has the right to waive the exemption for that lease?
2. Would an affirmative response to the first question also apply to a right to deduct arising in the period between notification of the legislative amendment mentioned in Ouestion 1 and its entry into force? In other words, in the event of an affirmative response to Ouestion 1, can tax still be charged, on the basis of Article 5(7)(a), on the elements of the cost price referred to in Article 11A(1)(b) of the Sixth Directive which were incurred after that notification date?
G&S properties BV, part ofthe Holin Group, built on its own land an Office building during the years 1994 and 1995. In 1994 it negotiated with the ING Bank and agreed that upon signing a rental contract the parties would opt for taxation. The contract was signed in December 1995 entering into force on 1 January 1996, thus, long after the press release announcing the retroactive anti-device law. The tax inspector assessed the Holin Group for a so-called internal supply based on Article 5(7)(a) of the Sixth Directive, which allows Member States to treat as a taxable supply the application of goods constructed by a business where the VAT on such goods would not be wholly deductible if they would have been acquired from another taxable person. The Holin Group appealed against this assessment. Eventually its dispute with the tax authorities resulted in preliminary questions by the Dutch Supreme Court to the ECJ.
On 29 April 2004, the ECJ gave its Judgment in the joined cases.
With regard to the first question in Holin Groep the ECJ observed thattreatment as supplies made for consideration under Article 5(7)(a) of the Sixth Directive and the adjustment referred to in Article 20(2) of that directive are two mechanisms with the same economic effect, that is to say, they oblige a taxable person to pay amounts equivalent to the deductions to which he was not entitled. However, the arrangements for payment are different. Whereas Article 5(7)(a) ofthe Sixth Directive entails a single payment, Article 20(2) provides for adjustments, in respect of capital goods, spread out over several years.
As regards the payment of amounts equivalent to deductions claimed by reason of a legislative amendment by which a Member State withdrewthe right to opt fortaxation of lettings of immovable property, the ECJ held that such a situation does not fali within the terms of Article 5(7)(a) of the Sixth Directive. That provision is intended to coverthe application of goods, by a taxable person, for the purposes of his business, and not a legislative amendment withdrawing the right to opt for taxation of an economic activity [5] which is generally exempt. The ECJ added to this that Article 20(2) of the Sixth Directive, providing for adjustment in the event of changes to the right to deduct, may serve as the basis for requiring a taxable person to pay sums originally deducted in respect of immovable property acquired as capital goods which has been let under an exempt lease.
In the light of this answer, there was no need to reply to the second question.
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