Nov 21

 

CJEU expected to deliver judgment in C-648/16, Fontana (VAT – The application of VAT to the overall turnover established by extrapolation)

 

Question referred for a preliminary ruling:

Do Articles 113 and 114 TFEU and [the VAT Directive] preclude the Italian domestic legislation in Articles 62sexies(3) and 62bis of Legislative Decree No 331/93 [converted into law by] Law No 427 of 29 October 1993, which allows the application of VAT to the overall turnover established by extrapolation, in the light of the principle of deduction and the obligation to recover the tax and, more generally, the principle of the neutrality and the passing-on of the tax?

 

More information on the opinion in this case as delivered on March 22, 2018 by Advocate General Wahl can be found here

 

 

 

 

 

Nov 21

 

 

CJEU expected to deliver judgment in C-664/16, Vădan (VAT – Deduction of input tax – Need to provide evidence by way of invoices)

 

Questions referred for a preliminary ruling:

(1)   On a proper construction of Directive 2006/112 in general, and Articles 167, 168, 178, 179 and 273 in particular, and the principles of proportionality and neutrality, may a taxable person who satisfies the substantive requirements for the deduction of VAT exercise his right to deduct in a situation where, in a particular context such as that of the dispute in the main proceedings, he is unable to provide evidence, by way of invoices, of input tax for the supply of goods and provision of services?

(2)   If the first question is answered in the affirmative, on a proper construction of Directive 2006/112 and the principles of proportionality and neutrality, is an indirect assessment method (assessment by means of a court-commissioned expert report), employed by an independent expert and based on the amount of work/labour involved in the construction of buildings as stated in the report, an acceptable and appropriate measure for determining the extent of the right to deduct in a situation where the supply of goods (building material) and the provision of services (labour relating to the construction of buildings) originate from taxable persons liable to VAT?’

 

More information on the opinion in this case as delivered on May 30, 2018 by Advocate General Tanchev can be found here

 

 

 

 

 

Nov 22

 

CJEU expected to deliver judgment in C-575/17, Sofina and Others (Freedom of establishment )

 

Questions referred for a preliminary ruling:

1. Must Articles 56 and 58 of the Treaty establishing the European Community, now Articles 63 and 65 of the Treaty on the Functioning of the European Union, be interpreted as meaning that the cash-flow disadvantage resulting from the application of withholding tax to dividends paid to loss-making non-resident companies, while loss-making resident companies are not taxed on the amount of the dividends they receive until the year when, if at all, they return to a surplus, constitutes in itself a difference in treatment characterising a restriction on the free movement of capital?

2. Must the potential restriction on the free movement of capital referred to in the preceding question, in view of the requirements resulting from Articles 56 and 58 of the Treaty establishing the European Community, now Articles 63 and 65 of the Treaty on the Functioning of the European Union, be regarded as being justified by the need to ensure the effective collection of tax, since non-resident companies are not subject to the supervision of the French tax authorities, or by the need to safeguard the allocation of the power to impose taxes between the Member States?

3. If application of the withholding tax at issue may in principle be allowed with regard to the free movement of capital:

  do those provisions preclude the collection of withholding tax on dividends paid by a resident company to a loss-making non-resident company of another Member State where the latter ceases to trade without returning to a surplus, while a resident company placed in that situation is not taxed on such dividends?

  must those provisions be interpreted as meaning that where taxation rules apply which treat dividends differently depending on whether they are paid to residents or non-residents, it is appropriate to compare the actual tax burden borne by each of them in respect of those dividends, so that a restriction on the free movement of capital resulting from the fact that those rules preclude for non-residents alone the deduction of expenses which are directly linked to the actual payment of the dividends may be regarded as being justified by the difference in the rate of tax between the ordinary-law tax payable in a subsequent year by residents and the withholding tax levied on dividends paid to non-residents, where that difference compensates, with regard to the amount of tax paid, for the difference in the tax base?

 

The opinion in this case as delivered on August 7, 2018 by Advocate General Wathelet can be found here

 

 

 

 

 

 

Nov 22

 

CJEU expected to deliver judgment in Case C-295/17, MEO – Serviços de Comunicações e Multimédia (VAT – Interpretation of Articles 2(1)(c), 64(1), 66(a) and 73 of Directive 2006/112/EC)

 

Questions referred for a preliminary ruling:

1. Must Articles 2(1)(c), 64(1), 66(a) and 73 of Directive 2006/112/EC be interpreted as meaning that a telecommunications operator (television, internet, mobile network and fixed network) is liable for value added tax as a result of charging its customers –– in a case of termination, for reasons attributable to the customer, of a contract containing an obligation to be bound by the contract for a defined term (tie-in period) before the end of that period –– a pre-determined amount, corresponding to the basic monthly amount payable by the customer under the contract, multiplied by the number of monthly payments that are still to be made before the end of the tie-in period, the operator having, at the time when that amount is invoiced and independently of its actual payment, already ceased to provide the services, where:

(a)   the contractual purpose of the amount invoiced is to deter the customer from disregarding the tie-in period which he has undertaken to observe and to make good the damage sustained by the operator as a result of the failure to complete the tie-in period –– in particular, on account of loss of the profit the operator would have obtained if the contract had continued until the end of the period, as well as on account of the agreement to charge lower tariffs, the supply of equipment or other offers, free of charge or at discounted prices, and the costs of advertising and of acquiring customers;

(b)   contracts negotiated with a tie-in period entail higher remuneration for the commercial intermediaries who obtained them than contracts obtained by them without a tie-in period and that remuneration is calculated, in each case (that is, as regards contracts with or without a tie-in), on the basis of the amount set for monthly payments in the contracts obtained;

(c)    the amount invoiced may be classified, under national law, as a penalty clause?

2. Is the answer to the first question liable to change in the event that one or more of the situations described in points (a), (b) and (c) of that question does not apply?

 

The opinion in this case as delivered on June 7, 2018 by Advocate General Kokott can be found here

 

 

 

 

 

 

Nov 22

 

CJEU expected to deliver judgment in Case C-679/17, Huijbrechts (Free movement of capital – Inheritance tax )

 

Questions referred for a preliminary ruling:

1. Does a situation whereby an heir inherits a forest area located outside Belgium, which is managed in a sustainable manner, and which is not exempt from inheritance tax under Article 55c of the Flemish Code on Inheritance Tax (now Article 2.7.6.0.3 of the Flemish Tax Code), whereas an heir who inherits a forest area in Flanders which is managed in a sustainable manner is exempt from inheritance tax under Article 55c of the Flemish Code on Inheritance Tax (now Article 2.7.6.0.3 of the Flemish Tax Code), constitute an impediment to the free movement of capital as laid down in Article 63 of the Treaty on the Functioning of the European Union?

2. Does the importance of the Flemish forest area, which is at issue here within the meaning of Article 55c of the Flemish Code on Inheritance Tax (now Article 2.7.6.0.3 of the Flemish Tax Code), constitute an overriding reason in the public interest which justifies a scheme whereby the application of an exemption from inheritance tax is limited to forest areas in Flanders which are sustainably managed?

 

 

 

 

 

 

 

 

 

 

 

 

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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