Nov 15

 

Opinion of the Advocate General expected to be delivered in the joined Cases C-327/16 (Jacob) & C-421/16 (Lassus) (interpretation of Article 8 of Directive 90/434/EEC of 23 July 1990 (The mergers directive)

 

Questions referred for a preliminary ruling in Case C-327/16:

1.     Must Article 8 of Directive [90/434/EEC] of 23 July 1990 be interpreted as meaning that it prohibits, in the event of an exchange of shares falling within the scope of the directive, a mechanism for deferred taxation which provides, by way of derogation from the rule that the chargeable event for capital gains tax purposes occurs during the year in which the gain arises, that the capital gain on the exchange is established and settled on the exchange of the shares, and taxed in the year in which the event putting an end to the deferred taxation occurs, which may, for instance, be the transfer of the shares that were received at the time of the exchange?

2.     Must Article 8 of Directive [90/434/EEC] be interpreted as meaning that it prohibits, in the event of an exchange of shares falling within the scope of the directive, the capital gain on the exchange of the shares — supposing it to be taxable — from being taxed by the State in which the taxpayer was resident at the time of the exchange, when the taxpayer, at the time the shares received on that exchange are transferred (at which time the capital gain on the exchange is actually taxed), has moved his residence for tax purposes to another Member State?

 

Questions referred for a preliminary ruling in Case C-421/16:

1.     Must the provisions of Article 8 of Directive 90/434/EEC of 23 July 1990 be interpreted as meaning that they prohibit, in the event of an exchange of securities falling within the scope of the directive, a mechanism for deferred taxation which provides, by way of derogation from the rule that the chargeable event for capital gains tax purposes occurs during the year in which the gain arises, that the capital gain on the exchange is established and settled on the exchange of the securities, and taxed in the year in which the event bringing an end to the deferred taxation occurs, which may, inter alia, be the transfer of the securities that were received at the time of the exchange?

2.     Assuming that it is taxable, may the capital gain on the exchange of securities be taxed by the State with powers of taxation at the time of the exchange, although the transfer of the securities received on that exchange falls within the fiscal competence of another Member State?

3.     If the answer to the previous questions is that the directive does not preclude the capital gain resulting from an exchange of securities from being taxed at the time at which the securities received at the time of that exchange are subsequently transferred, even if those two transactions do not fall within the fiscal competence of the same Member State, may the Member State in which the capital gain on the exchange was subject to deferred taxation tax the deferred capital gain at the time of the transfer, subject to the applicable provisions of the bilateral Tax Convention, irrespective of the outcome of the transfer when it results in a capital loss? That question is asked in respect of both Directive 90/434/EEC and the freedom of establishment guaranteed by Article 43 [EC], now Article 49 [TFEU], since a taxpayer whose tax residence is in France at the time at which the securities are exchanged and at the time at which they are transferred may, under the conditions set out in paragraph 4 above, benefit from a tax credit derived from the capital loss on the transfer.

4.     If the answer to Question 3 is that account must be taken of the capital loss on the transfer of the securities received at the time of the exchange, must the Member State in which the capital gain on the exchange was derived offset the capital loss on the transfer against the capital gain or, if the transfer does not fall within its fiscal competence, must that Member State forego the taxation of the capital gain on the exchange?

5.     If the answer to Question 4 is that the capital loss on the transfer may be offset against the capital gain on the exchange, what purchase price must be used for the securities transferred in order to calculate the capital loss on that transfer? In particular, should the purchase price per unit for the securities transferred be the total value of the securities in the company that were received upon the exchange, as indicated on the capital gains tax return, divided by the number of securities received at the time of the exchange, or should a weighted average purchase price be used, also taking into account transactions occurring after the exchange, such as further acquisitions or free allotments of securities in the same company?

 

 

 

 

 

 

Nov 15

 

CJEU expected to deliver judgment in the joined Cases C-374/16 (Geissel) & C-375/16 (Butin) (VAT – Right of deduction – Details required on invoices)

 

Questions referred for a preliminary ruling in Case C-374/16

(1)   Does an invoice required by Article 168(a) in conjunction with Article 178(a) of [the VAT Directive] in order to exercise a right of deduction contain a “full address” within the meaning of Article 226(5) of [the same directive] if, on the invoice he issues in relation to the supply, the taxable person making the supply gives an address by which he may be reached by post but where he does not carry out any economic activity?

(2)   Having regard to the principle of effectiveness, does Article 168(a) in conjunction with Article 178(a) of [the VAT Directive] preclude a national practice which takes into account good faith on the part of the recipient of a supply in the satisfaction of the requirements for the right to deduct input tax only outside the tax assessment procedure, within the framework of a special equitable procedure? In that regard may Article 178(a) of [the VAT Directive] be relied upon?

 

Questions referred for a preliminary ruling in Case C-375/16

(1)   Does Article 226(5) of [the VAT Directive] require the taxable person to indicate an address at which he carries [out] his economic activities?

(2)   If the answer to Question 1 is in the negative:

(a)   Is a letterbox address sufficient as an indication of address pursuant to Article 226(5) of the VAT Directive?

(b)   Which address must a taxable person who operates an undertaking (in the internet trade, for example) with no business premises indicate on an invoice?

(3)   In the event that the formal invoicing requirements laid down in Article 226 of the VAT Directive are not met, must the taxable person automatically be allowed to deduct input tax where no tax evasion has been committed or the taxable person did not know, and could not have known, of the connection with fraud or, in that event, does the principle of the protection of legitimate expectations presuppose that the taxable person has done everything that could reasonably be required of him in order to verify the accuracy of the content of the invoice?

 

More information regarding the Opinion of the Advocate General in this case can be found here

 

 

 

 

 

 

Nov 16

 

CJEU expected to deliver judgment in the Case C-308/16, Kozuba Premium Selection (VAT – Exemption for the supply of a building or parts thereof, and of the land on which it stands)

 

Questions referred for a preliminary ruling

(1)   Must Article 135(1)(j) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) be interpreted as precluding a national provision (point 10 of Article 43(1) of the Ustawa o podatku od towarów i usług [Law on the tax on goods and services] of 11 March 2004 [Dz. U. No 54, item 535, as amended; ‘the Law on VAT’]) under which the supply of buildings, civil engineering works or parts thereof is exempt from VAT save where:

(a)   the supply is made within the framework of the first occupation or prior to the first occupation,

(b)   the period between the first occupation and the supply of the building, civil engineering works or parts thereof was shorter than 2 years;

(2)   in so far as point 14 of Article 2 of the Law on VAT defines first occupation as release for use of buildings, civil engineering works or parts thereof, in performance of taxable activities, to the first customer or user, following their:

(a)   erection or

(b)   upgrade, if the expenditure incurred for the upgrade, as defined in the regulations on income tax, constituted at least 30% of the initial value?

 

The Opinion of the Advocate General in this case can be found here

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The schedule above merely contains a selection of events/important dates taking place during the week and should in no way be considered to be complete. It is very well possible that other important events take place during the week that were not included in the schedule above. It is your own responsibility to research other sources to review whether other important events take place that are not included in the schedule above.

 

Furthermore the schedule above is solely based on the information provided as by the respective authorities when the schedule above was drafted. It is your own responsibility to check whether the information included in the schedule above is complete, accurate and correct. International Tax Plaza and/or its owners do not accept any liability if the information provided in the schedule above is incomplete, not accurate and/or incorrect.

 

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