# C_2014329EN.01000302.xml

| 22.9.2014 | EN | Official Journal of the European Union | C 329/3 |
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22.9.2014

EN

Official Journal of the European Union

C 329/3

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Request for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 9 July 2014 — Wolfgang und Dr Wilfried Rey Grundstücksgemeinschaft GbR v Finanzamt Krefeld

(Case C-332/14)

2014/C 329/05

Language of the case: German

Referring court

Referring court

Bundesfinanzhof

Parties to the main proceedings

Parties to the main proceedings

Claimant: Wolfgang und Dr Wilfried Rey Grundstücksgemeinschaft GbR

Claimant:

Defendant: Finanzamt Krefeld

Defendant:

Questions referred

Questions referred

| 1. | The Court of Justice of the European Union has ruled that the third subparagraph of Article 17(5) of Sixth Council Directive 77/388/EEC (1) of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes (‘the Sixth Directive’) allows Member States, for the purposes of calculating the proportion of input VAT deductible for a given operation, such as the construction of a mixed-use building, to give precedence, as the key to allocation, to an allocation key other than that based on turnover appearing in Article 19(1) of the Sixth Directive, on condition that the method used guarantees a more precise determination of that deductible proportion (judgment in Case C-511/10 BLC Baumarkt [EU:C:2012:689]).






  (a) | At the time of acquisition or construction of a mixed-use building, for the purposes of calculating more precisely the deductible amounts of input tax, must inputs the basis of assessment of which is part of the acquisition or construction costs be attributed initially to the (taxable or exempt) turnover of the building and only the remaining input tax attributed by reference to a floor-area or turnover allocation key? |
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1.

The Court of Justice of the European Union has ruled that the third subparagraph of Article 17(5) of Sixth Council Directive 77/388/EEC (1) of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes (‘the Sixth Directive’) allows Member States, for the purposes of calculating the proportion of input VAT deductible for a given operation, such as the construction of a mixed-use building, to give precedence, as the key to allocation, to an allocation key other than that based on turnover appearing in Article 19(1) of the Sixth Directive, on condition that the method used guarantees a more precise determination of that deductible proportion (judgment in Case C-511/10 BLC Baumarkt [EU:C:2012:689]).

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(a)

At the time of acquisition or construction of a mixed-use building, for the purposes of calculating more precisely the deductible amounts of input tax, must inputs the basis of assessment of which is part of the acquisition or construction costs be attributed initially to the (taxable or exempt) turnover of the building and only the remaining input tax attributed by reference to a floor-area or turnover allocation key?

| (b) | Do the principles established by the Court of Justice in its judgment in BLC Baumarkt and the answer to the foregoing question apply also to amounts of input tax on inputs for the use, conservation or maintenance of a mixed-use building? |
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(b)

Do the principles established by the Court of Justice in its judgment in BLC Baumarkt and the answer to the foregoing question apply also to amounts of input tax on inputs for the use, conservation or maintenance of a mixed-use building?

BLC Baumarkt

| 2. | Is Article 20 of the Sixth Directive to be interpreted as meaning that the adjustment provided for in that provision as regards the initial input tax deduction applies also to circumstances in which a taxable person has attributed input tax arising from the construction of a mixed-use building in accordance with the turnover method provided for in Article 19(1) of the Sixth Directive and permitted by national law, and during the adjustment period a Member State subsequently provides that a different allocation key is to take precedence? |
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2.

Is Article 20 of the Sixth Directive to be interpreted as meaning that the adjustment provided for in that provision as regards the initial input tax deduction applies also to circumstances in which a taxable person has attributed input tax arising from the construction of a mixed-use building in accordance with the turnover method provided for in Article 19(1) of the Sixth Directive and permitted by national law, and during the adjustment period a Member State subsequently provides that a different allocation key is to take precedence?

| 3. | If the answer to the previous question is in the affirmative: Do the principles of legal certainty and the protection of legitimate expectations preclude the application of Article 20 of the Sixth Directive if, for cases of the type described above, the Member State has neither expressly required input tax to be adjusted nor made any transitional provision, and if the input tax attribution applied by the taxable person in accordance with the turnover method had previously been recognised by the Bundesfinanzhof as being generally appropriate? |
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3.

If the answer to the previous question is in the affirmative: Do the principles of legal certainty and the protection of legitimate expectations preclude the application of Article 20 of the Sixth Directive if, for cases of the type described above, the Member State has neither expressly required input tax to be adjusted nor made any transitional provision, and if the input tax attribution applied by the taxable person in accordance with the turnover method had previously been recognised by the Bundesfinanzhof as being generally appropriate?

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(1)  Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1).

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