# C_2012065EN.01000603.xml

| 3.3.2012 | EN | Official Journal of the European Union | C 65/6 |
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3.3.2012

EN

Official Journal of the European Union

C 65/6

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Reference for a preliminary ruling from Upper Tribunal (Tax and Chancery Chamber) (United Kingdom) made on 19 December 2011 — Her Majesty's Commissioners of Revenue and Customs v Paul Newey t/a Ocean Finance

(Case C-653/11)

2012/C 65/13

Language of the case: English

Referring court

Referring court

Upper Tribunal (Tax and Chancery Chamber)

Parties to the main proceedings

Parties to the main proceedings

Applicant: Her Majesty's Commissioners of Revenue and Customs

Applicant:

Defendant: Paul Newey t/a Ocean Finance

Defendant:

Questions referred

Questions referred

| 1. | In circumstances such as those in the present case, what weight should a national court give to contracts in determining the question of which person made a supply of services for the purposes of VAT? In particular, is the contractual position decisive in determining the VAT supply position? |
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1.

In circumstances such as those in the present case, what weight should a national court give to contracts in determining the question of which person made a supply of services for the purposes of VAT? In particular, is the contractual position decisive in determining the VAT supply position?

| 2. | In circumstances such as those in the present case, if the contractual position is not decisive, in what circumstances should a national court depart from the contractual position? |
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2.

In circumstances such as those in the present case, if the contractual position is not decisive, in what circumstances should a national court depart from the contractual position?

| 3. | In circumstances such as those in the present case, in particular, to what extent is it relevant:






  (a) | Whether the person who makes the supply as a matter of contract is under the overall control of another person? |
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3.

In circumstances such as those in the present case, in particular, to what extent is it relevant:

(a)

Whether the person who makes the supply as a matter of contract is under the overall control of another person?

| (b) | Whether the business knowledge, commercial relationship and experience rests with a person other than that which enters into the contract? |
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(b)

Whether the business knowledge, commercial relationship and experience rests with a person other than that which enters into the contract?

| (c) | Whether all or most of the decisive elements in the supply are performed by a person other than that which enters into the contract? |
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(c)

Whether all or most of the decisive elements in the supply are performed by a person other than that which enters into the contract?

| (d) | Whether the commercial risk of financial and reputational loss arising from the supply rests with someone other than that which enters into the contracts? |
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(d)

Whether the commercial risk of financial and reputational loss arising from the supply rests with someone other than that which enters into the contracts?

| (e) | Whether the person making the supply, as a matter of contract, sub-contracts decisive elements necessary for such supply to a person controlling that first person and such sub-contracting arrangements lack certain commercial features? |
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(e)

Whether the person making the supply, as a matter of contract, sub-contracts decisive elements necessary for such supply to a person controlling that first person and such sub-contracting arrangements lack certain commercial features?

| 4. | In circumstances such as those in the present case, should the national court depart from the contractual analysis? |
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4.

In circumstances such as those in the present case, should the national court depart from the contractual analysis?

| 5. | If the answer to question 4 is ‘no’, is the tax result of arrangements such as those in this case a tax advantage the grant of which would be contrary to the purpose of the Sixth Directive (1) within the meaning of paragraphs 74 to 86 of the Judgment in Case C-255/02 Halifax Plc and others v CCE? |
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5.

If the answer to question 4 is ‘no’, is the tax result of arrangements such as those in this case a tax advantage the grant of which would be contrary to the purpose of the Sixth Directive (1) within the meaning of paragraphs 74 to 86 of the Judgment in Case C-255/02 Halifax Plc and others v CCE?

1

| 6. | If the answer to question 5 is yes, how should arrangements such as those in the present case be recharacterised? |
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6.

If the answer to question 5 is yes, how should arrangements such as those in the present case be recharacterised?

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(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

1

OJ L 145, p. 1

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