On March 19, 2018 the Cour d’appel de Mons (Belgium) lodged a request for a preliminary ruling regarding the VAT consequences of certain sale and lease back transactions with the Court of Justice of the European Union (CJEU). The request was filed in Case C-201/18, Mydibel S.A. versus État belge. The question referred for a preliminary ruling has been published in the Official Journal of the European Union of May 28, 2018.
Question referred for a preliminary ruling
Must Articles 14, 15, 168, 184, 185, 187 and 188 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, be interpreted and applied as meaning that there is, or is not, a revision/adjustment of VAT on an investment good comprising immovable property which had initially been deducted correctly, in the case where that immovable property acquired as a capital good was the subject of a ‘sale and lease back’ transaction, given that:
· the ‘sale and lease back’ is created by the combined and simultaneous granting of a right of emphyteusis (being a temporary right in rem) by the taxable person to two financial institutions and by a leasing by those two institutions to the taxable person;
· that ‘sale and lease back’ is a purely financial transaction designed to increase the liquidity of the taxable person;
· the ‘sale and lease back’ transaction was not subject to VAT;
· the investment property remained in the possession of the taxable person and was used for the taxable activity of the taxable person in a continuous and sustainable manner, both before and after the transaction?
Does an interpretation and application of the abovementioned provisions leading to a revision/adjustment of the VAT initially deducted comply with the principle of neutrality of VAT and/or with the principle of equal treatment?
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