Feb 20

Meeting of the Economic and Financial Affairs Council (ECOFIN)

Feb 21

CJEU expected to deliver judgment in Case C-628/16, Kreuzmayr (VAT – place of supply)

Questions referred for a preliminary ruling:

Question 1:

In circumstances such as those at issue in the main proceedings, in which a taxable person X1 has at its disposal goods stored in Member State A and has sold those goods to a taxable person X2, and X2 has expressed to X1 its intention to transport the goods to Member State B, and X2 has presented to X1 its VAT identification number issued by Member State B,

and X2 has sold those goods on to a taxable person X3 and X2 has agreed with X3 that X3 will arrange or carry out the transport of the goods from Member State A to Member State B and X3 has arranged or carried out the transport of the goods from Member State A to Member State B and X3 was already entitled to dispose of the goods as owner in Member State A,

and X2 has not, however, informed X1 that he has already sold on the goods before they leave Member State A,

and X1 also could not know that X2 would not be arranging or carrying out the transport of the goods from Member State A to Member State B,

is EU law to be interpreted as meaning that the place of supply from X1 to X2 is determined in accordance with the first paragraph of Article 32 of Directive 2006/112/EC and that the supply from X1 to X2 is thus the intra-Community (the so-called ‘active’) supply (bewegte Lieferung)?

Question 2:

If Question 1 must be answered in the negative, is EU law then to be interpreted as meaning that X3 may nevertheless deduct as input VAT an amount of VAT of Member State B invoiced to it by X2, provided that X3 uses the goods purchased for purposes of its transactions taxed in Member State B and no wrongful exercise of the right of deduction of input VAT can be imputed to X3?

Question 3:

If Question 1 must be answered in the affirmative and X1 subsequently learns that X3 has arranged the transport and was already entitled to dispose of the goods as owner in Member State A, is EU law then to be interpreted as meaning that the supply from X1 to X2 retrospectively loses its status as the intra-Community supply (that it is thus to be viewed retrospectively as a so-called ‘passive’ supply (ruhende Lieferung))?

Feb 21

Opinion of the Advocate General expected to be delivered in Case C-28/17, NN (Freedom of establishment – setting off of losses of branches of non-resident companies)

Questions referred for a preliminary ruling:

1. What factors are to be taken into account in assessing whether resident companies in a situation such as the present one are subject to an ‘equivalent condition’ within the meaning of paragraph 20 of the Philips judgment, with respect to the setting off of losses, to that applicable to branches of non-resident companies?

2. If it is presumed that the Danish tax rules do not contain a difference of treatment as dealt with in the Philips case, does a prohibition of setting off similar to that described — in a case in which the loss in the non-resident company’s permanent establishment is also subject to the host country’s power of taxation — in itself constitute a restriction of the right of freedom of establishment under Article 49 TFEU, which has to be justified by reference to overriding reasons of the public interest?

3. If so, can such a restriction then be justified by the interest in preventing the double use of losses, the objective of ensuring a balanced distribution of powers of taxation between the Member States, or a combination of both?

4. If so, is such a restriction proportionate?

Feb 22

CJEU expected to deliver judgment in Case C-396/16, T - 2 (VAT – Adjustment of deductions of input VAT paid)

Questions referred for a preliminary ruling:

1. Should the reduction of the obligations on the basis of an arrangement with creditors, as in the main proceedings, which has been approved by judicial decree and has acquired the force of res judicata be treated as a change in the factors used to determine the amount of input VAT to be deducted, within the meaning of Article 185(1) of the VAT Directive, 1 or should it be treated as a different situation, in which the deduction is higher or lower than that to which the taxable person was entitled, within the meaning of Article 184 of the VAT Directive?

2. Should the reduction of the obligations on the basis of an arrangement with creditors, as in the main proceedings, which has been approved by judicial decree and has acquired the force of res judicata be regarded as a (partial) non-payment of a transaction, within the meaning of the first subparagraph of Article 185(2) of the VAT Directive?

3. Must a Member State, taking into account the requirements of clarity and certainty in legal situations imposed by the EU legislature and having regard for Article 186 of the VAT Directive, lay down, for the purpose of requiring adjustment of the deduction in the event of failure to make complete or partial payment, as permitted by the second subparagraph of Article 185(2) of that directive, detailed rules, in national law, to cover cases of non-payment, or may it include, in those rules, an arrangement with creditors approved by judicial decree which has acquired the force of res judicata (should this come within the concept of non-payment)?

More information on the opinion as delivered on October 12, 2017 by Advocate General Saugmandsgaard Øe in this case can be found here

Feb 22

CJEU expected to deliver judgment in joined Cases C-398/16 (X BV) and C-399/16 (X NV) (Freedom of establishment – Is Article 10a of the Dutch corporate income tax Act in breach with EU-law?)

Question referred for a preliminary ruling:

Must Articles 43 EC and 48 EC (now Articles 49 TFEU and 54 TFEU) be interpreted as precluding national legislation on the basis of which a parent company established in a Member State is not allowed to deduct interest in respect of a loan associated with a capital contribution made to a subsidiary established in another Member State, whereas that deduction could have been availed of if that subsidiary had been included with that parent company in a single tax entity — with characteristics such as those of a Netherlands single tax entity — in view of the fact that, in that case, by reason of consolidation, there would be no obvious association with such a capital contribution?

More information on the opinion as delivered on October 25, 2017 by Advocate General Campos Sánchez-Bordona in this case can be found here

Feb 22

Opinion of the Advocate General expected to be delivered in Case C-665/16, Gmina Wrocław (VAT – transfer of the ownership of immovable property)

Questions referred for a preliminary ruling:

1. Does the transfer, pursuant to the law, of the ownership of immovable property owned by a municipality to the State Treasury in return for payment of compensation, in the case where, under the rules of national law, that immovable property continues to be managed by the mayor of the municipality, who is simultaneously the representative of the State Treasury and the executive body of the municipality, constitute a taxable transaction within the meaning of Article 14(2)(a) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax?

2. In answering that question, is it significant whether the compensation paid to the municipality consists of an actual payment or is a mere internal accounting transfer within the municipal budget?

Feb 22

CJEU expected to deliver judgment in Case C-182/17, Nagyszénás Településszolgáltatási Nonprofit Kft. (VAT – Qualification of commercial company which is 100% owned by a municipality)

Questions referred for a preliminary ruling:

1. Does the concept of ‘bod[y] governed by public law’ in the first subparagraph of Article 13(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax include a commercial company which is 100% owned by a municipality?

2. If the answer to question 1 is in the affirmative, may it be considered that the commercial company acts as a public authority when performing tasks that are the responsibility of the municipality but that the latter delegates to that company?

3. If the answer to either of the previous questions is in the negative, may it be considered that the amount paid by the municipality to the commercial company for performing the tasks constitutes consideration?

Feb 23

Australia - Closing date for sending submission for the public consultation on Australian draft legislation to implement the MLI

More information on this public consultation as well as links to the consultation documents can be found here

Feb 23

Australia - Closing date for sending submission for the public consultation on Australian draft legislation intended to toughen the Multinational Anti Avoidance Law

More information on this public consultation as well as links to the consultation documents can be found here