# C_2017086EN.01001401.xml

| 20.3.2017 | EN | Official Journal of the European Union | C 86/14 |
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20.3.2017

EN

Official Journal of the European Union

C 86/14

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Request for a preliminary ruling from the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD) (Portugal) lodged on 29 December 2016 — Imofloresmira — Investimentos Imobiliários S.A. v Autoridade Tributária e Aduaneira

(Case C-672/16)

(2017/C 086/17)

Language of the case: Portuguese

Referring court

Referring court

Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD)

Parties to the main proceedings

Parties to the main proceedings

Applicant: Imofloresmira — Investimentos Imobiliários S.A.

Applicant:

Defendant: Autoridade Tributária e Aduaneira

Defendant:

Questions referred

Questions referred

| (1) | When a property, despite being unoccupied for the period of two or more years, is being marketed, that is it is available on the market to be let or for the provision of ‘office centre’ services, and it is established that the owner intends to let the property subject to VAT and has made the necessary efforts to give effect to that intention, is the characterisation as a ‘failure actually to use the property for the purposes of the business’ and/or ‘failure actually to use the property in taxed transactions’ — for the purposes of Article 26(1) of the VAT Code and Article 10(1)(b) of the Regime for the Waiver of the VAT exemption in Transactions relating to Immovable Property, introduced by Decree-Law No 21 of 29 January 2007, in their earlier versions — and therefore adopting the view that the deduction initially made must be adjusted, since it is above the amount to which the taxable person was entitled, compatible with Articles 167, 168, 184, 185 and 187 of Council Directive 2006/112/EC (1) of 28 November 2006? |
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(1)

When a property, despite being unoccupied for the period of two or more years, is being marketed, that is it is available on the market to be let or for the provision of ‘office centre’ services, and it is established that the owner intends to let the property subject to VAT and has made the necessary efforts to give effect to that intention, is the characterisation as a ‘failure actually to use the property for the purposes of the business’ and/or ‘failure actually to use the property in taxed transactions’ — for the purposes of Article 26(1) of the VAT Code and Article 10(1)(b) of the Regime for the Waiver of the VAT exemption in Transactions relating to Immovable Property, introduced by Decree-Law No 21 of 29 January 2007, in their earlier versions — and therefore adopting the view that the deduction initially made must be adjusted, since it is above the amount to which the taxable person was entitled, compatible with Articles 167, 168, 184, 185 and 187 of Council Directive 2006/112/EC (1) of 28 November 2006?

failure actually to use the property for the purposes of the business

failure actually to use the property in taxed transactions

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| (2) | If the answer is in the affirmative, may that adjustment, having regard to the correct interpretation of Articles 137, 167, 168, 184, 185 and 187 of ... Directive 2006/112/EC ..., be imposed only once for the entirety of the period yet to expire — as laid down in the Portuguese legislation, in Article 10(1)(b) and (c) of the Regime for the Waiver of the VAT exemption in Transactions relating to Immovable Property, introduced by Decree-Law No 21 of 29 January 2007, in its earlier version — where the property has been unoccupied for more than two years, but still marketed to be let (with the possibility of waiver) and/or for the provision of services (taxable), with the aim of assigning the property in subsequent years to taxed activities which confer the right to deduct? |
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(2)

If the answer is in the affirmative, may that adjustment, having regard to the correct interpretation of Articles 137, 167, 168, 184, 185 and 187 of ... Directive 2006/112/EC ..., be imposed only once for the entirety of the period yet to expire — as laid down in the Portuguese legislation, in Article 10(1)(b) and (c) of the Regime for the Waiver of the VAT exemption in Transactions relating to Immovable Property, introduced by Decree-Law No 21 of 29 January 2007, in its earlier version — where the property has been unoccupied for more than two years, but still marketed to be let (with the possibility of waiver) and/or for the provision of services (taxable), with the aim of assigning the property in subsequent years to taxed activities which confer the right to deduct?

| (3) | Is Article 2(2)(c) of the Regime for the Waiver of the VAT exemption in Transactions relating to Immovable Property introduced by Decree-Law No 21 of 29 January 2007, in conjunction with Article 10(1)(b) of that regime, compatible with Articles 137, 167, 168 and 184 of ... Directive 2006/112/EC ..., in making it impossible for a taxable person for VAT to waive the VAT exemption when entering into new leases after a single adjustment to VAT has been made and in undermining the subsequent deduction regime during the adjustment period? |
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(3)

Is Article 2(2)(c) of the Regime for the Waiver of the VAT exemption in Transactions relating to Immovable Property introduced by Decree-Law No 21 of 29 January 2007, in conjunction with Article 10(1)(b) of that regime, compatible with Articles 137, 167, 168 and 184 of ... Directive 2006/112/EC ..., in making it impossible for a taxable person for VAT to waive the VAT exemption when entering into new leases after a single adjustment to VAT has been made and in undermining the subsequent deduction regime during the adjustment period?

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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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