Nov 22

  

United Kingdom – Autumn Budget 2017

  

The Chancellor of the Exchequer will present his Autumn Budget to Parliament.

 

 

 

 

 

Nov 22

 

CJEU expected to deliver judgment in the Case C-251/16, Cussens and Others (VAT – Tax avoidance – Direct applicability of the principle of prohibition of abuse of rights recognised in Halifax and Others (C-255/02))

 

Questions referred for a preliminary ruling

(1)   Is the principle of abuse of rights, as recognised in the judgment of the Court in Halifax as being applicable in the sphere of VAT, directly effective against an individual in the absence of a national measure, whether legislative or judicial, giving effect to that principle, in circumstances where, as here, the redefining of the pre-sale transactions and the purchaser sales transactions (collectively referred to as the appellants’ transactions) as advocated by the Commissioners, would give rise to a liability on the part of the appellants to VAT where such liability, on the proper application of the provisions of national legislation in force at the relevant time to the appellants’ transactions did not arise?

(2)   If the answer to question (1) is that the principle of abuse of rights is directly effective against an individual, even in the absence of a national measure whether legislative or judicial giving effect to that principle was the principle sufficiently clear and precise to be applied to the appellants’ transactions, which were completed before the judgment of the Court in Halifax was delivered and in particular having regard to the principles of legal certainty and the protection of the appellants’ legitimate expectations?

(3)   If the principle of abuse of rights applies to the appellants’ transactions so that they are to be redefined —

(a)   what is the legal mechanism by means of which the VAT due on the appellants’ transactions is assessed and is collected since no VAT is due assessable or collectable in accordance with national law and

(b)   how are the national courts to impose such liability?

(4)   In determining whether the essential aim of the appellants’ transactions was to obtain a tax advantage should the national court consider the pre-sale transactions (which it has been found were effected solely for tax reasons) in isolation or must the aim of the appellants’ transactions as a whole be considered?

(5)   Is s. 4(9) of the VAT Act to be treated as national legislation implementing the Sixth Directive notwithstanding that it is incompatible with the legislative provision envisaged in Article 4(3) of the Sixth Directive on the proper application of which the appellants in relation to the supply before first occupation of the properties, would be treated as taxable persons notwithstanding that there had been a previous disposal which was chargeable to tax?

(6)   If s. 4(9) is incompatible with the Sixth Directive are the appellants by relying on that subsection engaged in an abuse of rights contrary to the principles recognised in the judgment of the Court in Halifax?

(7)   In the alternative if s. 4(9) is not incompatible with the Sixth Directive have the appellants achieved a tax advantage which is contrary to the purpose of the directive and/or s. 4?

(8)   Even if s. 4(9) is not to be treated as implementing the Sixth Directive, does the principle of abuse of rights as established by the judgment of the Court in Halifax nevertheless apply to the transactions in issue by reference to the criteria laid down by the Court in Halifax?

 

More information on the Opinion of the Advocate General in this case as delivered on September 7, 2017 can be found here

 

 

 

 

 

Nov 23

 

CJEU expected to deliver judgment in the Case C-246/16, Di Maura (VAT – Restriction of the right to reduce the taxable amount in the event of non-payment by the other party to the contract)

 

Questions referred for a preliminary ruling

1.     Having regard to Article 11(C)(1) and the second sentence of Article 20(1)(b) of the Sixth VAT Directive in relation to the downward correction of the taxable amount and the correction of the VAT charged on taxable transactions in cases where the consideration agreed by the parties remains totally or partially unpaid, is it compatible with the principles of proportionality and effectiveness guaranteed by the TFEU, and the principle of neutrality that governs the application of VAT, to impose limits that make it impossible or excessively costly — including in terms of the time associated with the unforeseeable duration of an insolvency procedure — for the taxable person to recover the tax on the consideration which remains totally or partially unpaid?

2.     If the first question is to be answered in the affirmative: is it compatible with the principles set out above that a provision — such as Article 26(2) of Decree No 633/1972, in the version in force before the amendments introduced by Article 1(126) and (127) of Law No 208 of 28 December 2015 — makes the right to recover the tax contingent on proof that insolvency procedures have previously been unsuccessful, that is to say, in accordance with case-law and the practice of the tax authority of the EU Member State, following definitive failure to distribute the assets, or, failing that, a final decision closing the insolvency procedure, even where such procedures may reasonably be deemed to be uneconomic because of the amount of the claim, the prospects of recovery and the costs of the insolvency procedures, and given that, in any event, the specified conditions could only be met years after the date of opening of the insolvency proceedings?

 

More information on the Opinion of the Advocate General in this case as delivered on June 8, 2017 can be found here

 

 

 

 

 

Nov 23

 

CJEU expected to deliver judgment in the Case C-292/16, A (Freedom of establishment – disposal of assets of a foreign permanent establishment by way of a merger)

 

Questions referred for a preliminary ruling

(1)   Does Article 49 TFEU preclude Finnish legislation under which, where a Finnish company by way of a transfer of business disposes of assets of a permanent establishment situated in another EU Member State to a company established in that State in return for new shares, the transfer of the assets is taxed immediately in the year of transfer, but in a corresponding national situation is not taxed until the time of realisation?

(2)   Is there indirect or direct discrimination if Finland levies tax immediately in the year of the transfer of business before the income has been realised, and in a domestic situation not until the time of realisation?

(3)   If the answer to Questions 1 and 2 is in the affirmative, may the restriction of the right of establishment be justified on grounds such as an overriding reason of the public interest or the preservation of the national power of taxation? Does the prohibited restriction comply with the principle of proportionality?

 

Opinion of the Advocate General in this case as delivered on July 13, 2017 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.

 

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