# C_2011311EN.01002301.xml

| 22.10.2011 | EN | Official Journal of the European Union | C 311/23 |
| ---------- | -- | -------------------------------------- | -------- |

---

Reference for a preliminary ruling from First-tier Tribunal (Tax Chamber) (United Kingdom) made on 11 August 2011 — Wheels Common Investment Fund Trustees Ltd, National Association of Pension Funds Ltd, Ford Pension Fund Trustees Ltd, Ford Salaried Pension Fund Trustees Ltd, Ford Pension Scheme for Senior Staff Trustee Ltd v Commissioners for Her Majesty's Revenue and Customs

(Case C-424/11)

2011/C 311/39

Language of the case: English

Referring court

First-tier Tribunal (Tax Chamber)

Parties to the main proceedings

Applicants: Wheels Common Investment Fund Trustees Ltd, National Association of Pension Funds Ltd, Ford Pension Fund Trustees Ltd, Ford Salaried Pension Fund Trustees Ltd, Ford Pension Scheme for Senior Staff Trustee Ltd

Defendant: Commissioners for Her Majesty's Revenue and Customs

Questions referred

| 1. | Are the words ‘special investment funds’ in Article 13B(d)(6) of the Sixth VAT Directive( 1 ) and Article 135(1)(g) of Directive 2006/112( 2 ) capable of including (i) an occupational pension scheme established by an employer that is intended to provide pension benefits to employees and/or (ii) a common investment fund in which the assets of several such pension schemes are pooled for investment purposes in circumstances where, in relation to the pension schemes in question:
(a)
the pension benefits receivable by a member are defined in advance in the legal documents creating the scheme (by reference to a formula based on the length of the member's service with the employer and the member's salary and not by reference to the value of the scheme assets; (b)
the employer is obliged to make contributions to the scheme; (c)
only employees of the employer can participate in the scheme and obtain pension benefits under it (a participant in the scheme is here referred to as a ‘member’); (d)
an employee is free to decide whether or not to be a member; (e)
an employee who is a member is normally obliged to make contributions to the scheme based on a percentage of his salary; (f)
the contributions of the employer and the members are pooled by the scheme trustee and are invested (generally in securities) in order to provide a fund out of which the benefits provided for in the scheme are paid to the members; (g)
if the scheme assets are greater than what is required to fund the benefits provided for under the scheme, the trustee of the scheme and/or the employer may, in accordance with the terms of the scheme and relevant provisions of national law, do anyone or combination of the following: (i) reduce the employer's contributions to the scheme; (ii) transfer all or a part of the benefit of the surplus to the employer; (iii) improve the benefits to members under the scheme; (h)
if the scheme assets are less than what is required to fund the benefits provided for under the scheme, the employer is normally obliged to make up the deficit and, if the employer does not, or is unable to do so, the benefits received by members are reduced; (i)
the scheme permits members to make additional voluntary contributions (‘AVCs’) which are not held by the scheme but are transferred to a third party for investment and the provision of additional benefits based on the performance of the investment made (such arrangements are not subject to VAT); (j)
members have the right to transfer their accrued benefits under the scheme (valued by reference to the actuarial value of those benefits at the time of transfer) to other pension schemes; (k)
the employer's and members' contributions to the scheme are not treated for the purposes of income tax levied by the Member State as income of the members; (l)
pension benefits received by members under the scheme are treated for the purposes of income tax levied by the Member State as income of the members; and (m)
the employer, and not the members of the scheme, bears the cost of charges made for the management of the scheme? | (a) | the pension benefits receivable by a member are defined in advance in the legal documents creating the scheme (by reference to a formula based on the length of the member's service with the employer and the member's salary and not by reference to the value of the scheme assets; | (b) | the employer is obliged to make contributions to the scheme; | (c) | only employees of the employer can participate in the scheme and obtain pension benefits under it (a participant in the scheme is here referred to as a ‘member’); | (d) | an employee is free to decide whether or not to be a member; | (e) | an employee who is a member is normally obliged to make contributions to the scheme based on a percentage of his salary; | (f) | the contributions of the employer and the members are pooled by the scheme trustee and are invested (generally in securities) in order to provide a fund out of which the benefits provided for in the scheme are paid to the members; | (g) | if the scheme assets are greater than what is required to fund the benefits provided for under the scheme, the trustee of the scheme and/or the employer may, in accordance with the terms of the scheme and relevant provisions of national law, do anyone or combination of the following: (i) reduce the employer's contributions to the scheme; (ii) transfer all or a part of the benefit of the surplus to the employer; (iii) improve the benefits to members under the scheme; | (h) | if the scheme assets are less than what is required to fund the benefits provided for under the scheme, the employer is normally obliged to make up the deficit and, if the employer does not, or is unable to do so, the benefits received by members are reduced; | (i) | the scheme permits members to make additional voluntary contributions (‘AVCs’) which are not held by the scheme but are transferred to a third party for investment and the provision of additional benefits based on the performance of the investment made (such arrangements are not subject to VAT); | (j) | members have the right to transfer their accrued benefits under the scheme (valued by reference to the actuarial value of those benefits at the time of transfer) to other pension schemes; | (k) | the employer's and members' contributions to the scheme are not treated for the purposes of income tax levied by the Member State as income of the members; | (l) | pension benefits received by members under the scheme are treated for the purposes of income tax levied by the Member State as income of the members; and | (m) | the employer, and not the members of the scheme, bears the cost of charges made for the management of the scheme? |
| --- | ----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- | --- | -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- | --- | ------------------------------------------------------------ | --- | ------------------------------------------------------------------------------------------------------------------------------------------------------------------ | --- | ------------------------------------------------------------ | --- | ------------------------------------------------------------------------------------------------------------------------ | --- | -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- | --- | -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- | --- | ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- | --- | -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- | --- | ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- | --- | ----------------------------------------------------------------------------------------------------------------------------------------------------------- | --- | --------------------------------------------------------------------------------------------------------------------------------------------------------- | --- | ----------------------------------------------------------------------------------------------------------------- |
| (a) | the pension benefits receivable by a member are defined in advance in the legal documents creating the scheme (by reference to a formula based on the length of the member's service with the employer and the member's salary and not by reference to the value of the scheme assets; | | | | | | | | | | | | | | | | | | | | | | | | | | |
| (b) | the employer is obliged to make contributions to the scheme; | | | | | | | | | | | | | | | | | | | | | | | | | | |
| (c) | only employees of the employer can participate in the scheme and obtain pension benefits under it (a participant in the scheme is here referred to as a ‘member’); | | | | | | | | | | | | | | | | | | | | | | | | | | |
| (d) | an employee is free to decide whether or not to be a member; | | | | | | | | | | | | | | | | | | | | | | | | | | |
| (e) | an employee who is a member is normally obliged to make contributions to the scheme based on a percentage of his salary; | | | | | | | | | | | | | | | | | | | | | | | | | | |
| (f) | the contributions of the employer and the members are pooled by the scheme trustee and are invested (generally in securities) in order to provide a fund out of which the benefits provided for in the scheme are paid to the members; | | | | | | | | | | | | | | | | | | | | | | | | | | |
| (g) | if the scheme assets are greater than what is required to fund the benefits provided for under the scheme, the trustee of the scheme and/or the employer may, in accordance with the terms of the scheme and relevant provisions of national law, do anyone or combination of the following: (i) reduce the employer's contributions to the scheme; (ii) transfer all or a part of the benefit of the surplus to the employer; (iii) improve the benefits to members under the scheme; | | | | | | | | | | | | | | | | | | | | | | | | | | |
| (h) | if the scheme assets are less than what is required to fund the benefits provided for under the scheme, the employer is normally obliged to make up the deficit and, if the employer does not, or is unable to do so, the benefits received by members are reduced; | | | | | | | | | | | | | | | | | | | | | | | | | | |
| (i) | the scheme permits members to make additional voluntary contributions (‘AVCs’) which are not held by the scheme but are transferred to a third party for investment and the provision of additional benefits based on the performance of the investment made (such arrangements are not subject to VAT); | | | | | | | | | | | | | | | | | | | | | | | | | | |
| (j) | members have the right to transfer their accrued benefits under the scheme (valued by reference to the actuarial value of those benefits at the time of transfer) to other pension schemes; | | | | | | | | | | | | | | | | | | | | | | | | | | |
| (k) | the employer's and members' contributions to the scheme are not treated for the purposes of income tax levied by the Member State as income of the members; | | | | | | | | | | | | | | | | | | | | | | | | | | |
| (l) | pension benefits received by members under the scheme are treated for the purposes of income tax levied by the Member State as income of the members; and | | | | | | | | | | | | | | | | | | | | | | | | | | |
| (m) | the employer, and not the members of the scheme, bears the cost of charges made for the management of the scheme? | | | | | | | | | | | | | | | | | | | | | | | | | | |

| 2. | In the light of (i) the objective of the exemption in Article 13B(d)(6) of the Sixth VAT Directive and Article 135(l)(g) of Directive 2006/112, (ii) the principle of fiscal neutrality and (iii) the circumstances set out in Question 1 above:
(a)
is a Member State entitled to define, in national law, the funds that fall within the concept of ‘special investment funds’ in such a way as to exclude funds of the type referred to in Question I above while including collective investment undertakings as defined in Directive 85/611, as amended? (b)
to what extent (if at all) are the following relevant to the question whether or not a fund of the type referred to in Question 1 above is to be identified by a Member State in its national law as ‘special investment fund’:
(i)
the features of the fund (set out in Question 1 above); (ii)
the degree to which the fund is ‘similar to and thus in competition with’ investment vehicles that have already been identified by the Member State as ‘special investment funds’? | (a) | is a Member State entitled to define, in national law, the funds that fall within the concept of ‘special investment funds’ in such a way as to exclude funds of the type referred to in Question I above while including collective investment undertakings as defined in Directive 85/611, as amended? | (b) | to what extent (if at all) are the following relevant to the question whether or not a fund of the type referred to in Question 1 above is to be identified by a Member State in its national law as ‘special investment fund’:
(i)
the features of the fund (set out in Question 1 above); (ii)
the degree to which the fund is ‘similar to and thus in competition with’ investment vehicles that have already been identified by the Member State as ‘special investment funds’? | (i) | the features of the fund (set out in Question 1 above); | (ii) | the degree to which the fund is ‘similar to and thus in competition with’ investment vehicles that have already been identified by the Member State as ‘special investment funds’? |
| ---- | ----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- | --- | -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- | ---- | -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- | --- | ------------------------------------------------------- | ---- | ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- |
| (a) | is a Member State entitled to define, in national law, the funds that fall within the concept of ‘special investment funds’ in such a way as to exclude funds of the type referred to in Question I above while including collective investment undertakings as defined in Directive 85/611, as amended? | | | | | | | | |
| (b) | to what extent (if at all) are the following relevant to the question whether or not a fund of the type referred to in Question 1 above is to be identified by a Member State in its national law as ‘special investment fund’:
(i)
the features of the fund (set out in Question 1 above); (ii)
the degree to which the fund is ‘similar to and thus in competition with’ investment vehicles that have already been identified by the Member State as ‘special investment funds’? | (i) | the features of the fund (set out in Question 1 above); | (ii) | the degree to which the fund is ‘similar to and thus in competition with’ investment vehicles that have already been identified by the Member State as ‘special investment funds’? | | | | |
| (i) | the features of the fund (set out in Question 1 above); | | | | | | | | |
| (ii) | the degree to which the fund is ‘similar to and thus in competition with’ investment vehicles that have already been identified by the Member State as ‘special investment funds’? | | | | | | | | |

| 3. | If in answer to Question 2(b)(ii) above it is relevant to determine the degree to which the fund is ‘similar to and thus in competition with’ investment vehicles that have already been identified by the Member State as ‘special investment funds’, is it necessary to consider the existence or extent of ‘competition’ between the fund in question and those other investment vehicles as a separate question from the question of ‘similarity’? |
| -- | ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------ |

---

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

OJ L 145, p. 1

( 2 )  Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax

OJ L 347, p. 1

---