Mar 7

 

Opinion of the Advocate General expected to be delivered in Case C-544/16, Marcandi (VAT)

 

Questions referred for a preliminary ruling:

On the correct interpretation of articles 2(1), 24, 62, 63, 65, and 73 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, and in circumstances such as those in the main proceedings:

1. is the issue of Credits to users, by Madbid, in return for a money payment:

-   a "preliminary transaction" outside the scope of article 2(1), of the sort identified by the Court in MacDonald Resorts Ltd v Revenue and Customs Commissioners (C-270/09) [2010] ECR I-13179 ECLI:EU:C:2010:780, at paragraphs 23-42; or

-   a supply of services by Madbid within the meaning of article 2(1)(c), namely the grant of a right to participate in online auctions;

-   if the grant of a right to participate in online auctions is a supply of services by Madbid, then is it a supply made "for consideration" within the meaning of article 2(1)(c), namely the payment for it (i.e. the money received by Madbid from a user in return for Credits);

-   is the answer to (b) different if the payment for the Credits also serves as an entitlement for the user to acquire goods to the same value in the event of the user not succeeding in the auction;

-   if Madbid does not make a supply of services for consideration when it issues Credits to its users in return for a money payment, does it make such a supply at any other time;

and what principles should be applied in determining the answer to those questions?

2  On the correct interpretation of articles 2(1), 14, 62, 63, 65, 73 and 79(b) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax what, in circumstances such as those in the main proceedings, is the consideration obtained by Madbid in return for the supplies of goods that it makes to users, for the purposes of articles 2(1)(a) and 73? In particular, and taking into account the answer to Question 1:

-   is the money paid by a user to Madbid for Credits a "payment...on account" for a supply of goods within the scope of article 65, so that VAT is "chargeable" on receipt of that payment, and such that the payment received by Madbid from the user is consideration for a supply of goods;

-   if a user buys goods through the Buy Now or Earned Discount features, is the value of Credits used in placing bids in auctions and, where the bid is unsuccessful, has the effect of generating Earned Discount or reducing the Buy Now price:

-   a "price discount" within the meaning of article 79(b), such that the consideration for Madbid's supply of the goods is the money actually paid to Madbid by the user at the time of purchasing the goods and no more; or

-   part of the consideration for the supply of goods, such that the consideration for Madbid's supply of goods includes both the money paid to Madbid by the user at the time of purchasing the goods and the money paid by the user for Credits used in placing unsuccessful bids in auctions;

-   if a user exercises the right to buy goods after winning an online auction, is the consideration for the supply of those goods the stated auction winning price (plus shipping and handling charges) and no more, or is the value of the Credits that the winner used to bid in that auction also part of the consideration for the supply of those goods by Madbid to the user;

-   or what principles should be applied in determining the answer to those questions?

3  Where two Member States treat a transaction differently for the purposes of VAT, to what extent should the courts of one of those Member States take into account, when interpreting the relevant provisions of EU law and national law, the desirability of avoiding:

-   double taxation of the transaction; and/or

-   non-taxation of the transaction;

-   and what bearing does the principle of fiscal neutrality have on this question?

 

 

 

 

 

 

 

 

Mar 7

 

CJEU expected to deliver judgment in Case C-159/17, Dobre (VAT – Consequences of the revoking of a taxpayer’s registration for VAT purposes )

 

Question referred for a preliminary ruling:

Must Articles 167, 168, 169, 179, 213(1), 214(1)(a) and 273 of Directive 2006/112/EC 1 be interpreted as precluding national legislation which, in circumstances such as those of the main proceedings, requires a taxpayer, whose registration for VAT purposes has been revoked, to pay to the State the VAT collected during the period in which the VAT identification code was revoked, without, however, recognising his right to deduct the VAT relating to purchases made during that period?

 

 

 

 

 

Mar 7

 

CJEU expected to deliver judgment in Case C-31/17, Cristal Union (Taxation of energy products and electricity)

 

Question referred for a preliminary ruling:

Do energy products used for combined heat and electricity generation come exclusively within the scope of the optional power to exempt conferred by Article 15(1)(c) of Council Directive 2003/96/EC of 27 October 2003 or do they also come, as regards the proportion of those products the consumption of which corresponds to the generation of electricity, within the scope of the obligation to exempt provided for by Article 14(1)(a) of that directive?

 

The opinion in this case as delivered on February 22, 2018 by Advocate General Tanchev can be found here

 

 

 

 

 

Mar 7

 

Opinion of the Advocate General expected to be delivered in Case C-90/17, Turbogás (Meaning of the term an entity producing electricity for its own use’, as referred to in Article 21(5) of Directive 2003/96/EC)

 

Questions referred for a preliminary ruling:

1  Pursuant to and for the purposes of the third paragraph of Article 21(5) of Directive 2003/96/EC, must entities which produce electricity for their own use be small producers in order for them to be … regarded as distributors, and [thus] subject to tax in accordance with the first paragraph of Article 21(5) of that directive, so that other entities (those which are not small producers) which produce electricity for their own use are excluded from that classification as distributors, or must all entities which produce electricity for their own use (regardless of their respective size and of whether they do so as their main or secondary economic activity), and are not exempt as small producers under the second sentence of the third paragraph of Article 21(5) of that directive, be regarded as distributors, and [thus] subject to tax in accordance with the first paragraph of Article 21(5) of that directive?

 

2  In particular, may an entity, such as the one at issue in these proceedings, which is a large electricity producer, producing around 9% of the national energy for sale to the national grid, be regarded as ‘an entity producing electricity for its own use’, as referred to in Article 21(5) of Directive 2003/96/EC, when only a small part of the electricity which it produces is consumed in its own production of new electricity as an integral part of its production process?

 

 

 

 

 

Mar 7

 

Opinion of the Advocate General expected to be delivered in Case C-103/17, Messer France (Taxation of energy products and electricity)

 

Questions referred for a preliminary ruling:

1  In the case where a Member State has not, following the entry into force of Directive 2003/96/EC of 27 October 2003, initially laid down any provision creating an excise duty on the consumption of electricity, but has maintained in force a previously-created indirect tax on such consumption, in addition to local taxes:

  is the compatibility of the tax in question with Directive 92/12/EEC of 25 February 1992 and with [Directive 2003/96/EC] of 27 October 2003 to be assessed in the light of the conditions laid down by Article 3(2) of Directive 92/12/EEC for the existence of ‘another indirect tax’, that is to say, the pursuit of one or more specific purposes and compliance with certain tax rules applicable to excise duty or value added tax?

  or is it possible to retain ‘another indirect tax’ only where a harmonised excise duty exists and finally, if so, could the contribution in question be regarded as being such a duty, its compatibility with those two directives thus falling to be assessed in the light of all of the harmonising rules which they lay down?

2  Is a contribution based on the consumption of electricity, the revenue from which is allocated both to the financing of expenditure connected with the generation of electricity from renewable sources and cogeneration and to the implementation of a geographical price-balancing mechanism and a reduction in the price of electricity for low-income households, to be regarded as pursuing specific purposes within the meaning of Article 3(2) of Directive 92/12/EEC, as restated in Article 1(2) of Directive 2008/118/EC?

3  In the event that only some of the purposes pursued can be characterised as specific within the meaning of those provisions, can taxpayers nonetheless claim full reimbursement of the contribution at issue, or may they claim only a partial reimbursement based on the proportion of the overall expenditure financed by the contribution which did not relate to a specific purpose?

4  If the answer to the preceding questions is such that the system of contribution to the public electricity service is, in whole or in part, incompatible with the rules on the taxation of electricity laid down by EU law, is the second subparagraph of Article 18(10) of Directive 2003/96/EC to be interpreted as meaning that, until 1 January 2009, compliance with the minimum rates of taxation laid down by Directive 2003/96/EC was, among the rules on the taxation of electricity laid down by EU law, the only obligation incumbent on France?

 

 

 

 

 

 

 

 

 

 

 

 

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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