# C_2014253EN.01001602.xml

| 4.8.2014 | EN | Official Journal of the European Union | C 253/16 |
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4.8.2014

EN

Official Journal of the European Union

C 253/16

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Request for a preliminary ruling from the Curtea de Apel Cluj (Romania) lodged on 11 April 2014 — Radu Florin Salomie, Nicolae Vasile Oltean v Direcția Generală a Finanțelor Publice Cluj

(Case C-183/14)

2014/C 253/21

Language of the case: Romanian

Referring court

Referring court

Curtea de Apel Cluj

Parties to the main proceedings

Parties to the main proceedings

Applicant: Radu Florin Salomie, Nicolae Vasile Oltean

Applicant:

Defendant: Direcția Generală a Finanțelor Publice Cluj

Defendant:

Questions referred

Questions referred

| 1) | May a natural person who enters into a partnership contract with other natural persons, a partnership without legal personality that is not declared or registered for tax purposes, intended for the execution of future works (building) on a site forming part of the personal assets of some of the contracting parties be regarded, in the light of the circumstances of the main case, as a taxable person for VAT purposes within the meaning of Article 9(1) of the VAT Directive (1), where, under the fiscal rules, the tax authorities initially treated the transfer of ownership of the buildings on the site forming part of the personal assets of some of the contracting parties as sales falling within the scope of the management of the private wealth of such persons? |
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1)

May a natural person who enters into a partnership contract with other natural persons, a partnership without legal personality that is not declared or registered for tax purposes, intended for the execution of future works (building) on a site forming part of the personal assets of some of the contracting parties be regarded, in the light of the circumstances of the main case, as a taxable person for VAT purposes within the meaning of Article 9(1) of the VAT Directive (1), where, under the fiscal rules, the tax authorities initially treated the transfer of ownership of the buildings on the site forming part of the personal assets of some of the contracting parties as sales falling within the scope of the management of the private wealth of such persons?

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| 2) | In the light of the circumstances of the main case, must the principles of legal certainty and the protection of legitimate expectations, and the other general principles relating to VAT, as laid down in Directive 2006/112, be interpreted as precluding a national practice whereby, after initially levying on a natural person tax on the income deriving from the transfer of ownership of properties forming part of his personal wealth, the tax authorities — without there having been any substantial amendment of primary law — review the position after a period of two years on the basis of the same facts and classifies the same transactions as economic activities subject to VAT, calculating the incidental charges retroactively? |
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2)

In the light of the circumstances of the main case, must the principles of legal certainty and the protection of legitimate expectations, and the other general principles relating to VAT, as laid down in Directive 2006/112, be interpreted as precluding a national practice whereby, after initially levying on a natural person tax on the income deriving from the transfer of ownership of properties forming part of his personal wealth, the tax authorities — without there having been any substantial amendment of primary law — review the position after a period of two years on the basis of the same facts and classifies the same transactions as economic activities subject to VAT, calculating the incidental charges retroactively?

| 3) | Must Articles 167, 168 and 213 of the VAT Directive, considered in the light of the principle of fiscal neutrality, be interpreted as precluding, in the circumstances of the main case, the tax authorities from refusing a taxable person the right to deduct the VAT owed or paid on goods or services used for the purposes of taxable transactions simply because he was not registered as a taxable person for VAT purposes at the time when the supplies in question were carried out? |
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3)

Must Articles 167, 168 and 213 of the VAT Directive, considered in the light of the principle of fiscal neutrality, be interpreted as precluding, in the circumstances of the main case, the tax authorities from refusing a taxable person the right to deduct the VAT owed or paid on goods or services used for the purposes of taxable transactions simply because he was not registered as a taxable person for VAT purposes at the time when the supplies in question were carried out?

| 4) | In the light of the circumstances of the main case, may Article 179 of [Directive 2006/112] be interpreted as precluding national legislation under which a taxable person to whom the special exemption scheme is applied and who has belatedly applied for registration for VAT purposes is under an obligation to pay the tax that should have been levied, but has no right to subtract the amount of tax deductible for each tax period, it being the case that that right of deduction will be exercised subsequently on the basis of the tax return submitted after registration of the taxable person for VAT purposes, which may have repercussions for calculation of the incidental charges? |
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4)

In the light of the circumstances of the main case, may Article 179 of [Directive 2006/112] be interpreted as precluding national legislation under which a taxable person to whom the special exemption scheme is applied and who has belatedly applied for registration for VAT purposes is under an obligation to pay the tax that should have been levied, but has no right to subtract the amount of tax deductible for each tax period, it being the case that that right of deduction will be exercised subsequently on the basis of the tax return submitted after registration of the taxable person for VAT purposes, which may have repercussions for calculation of the incidental charges?

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(1)  Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).

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