# C_2022318EN.01000802.xml

| 22.8.2022 | EN | Official Journal of the European Union | C 318/8 |
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22.8.2022

EN

Official Journal of the European Union

C 318/8

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Judgment of the Court (Second Chamber) of 30 June 2022 (request for a preliminary ruling from the Mokestinių ginčų komisija prie Lietuvos Respublikos vyriausybės — Lithuania) — UAB ‘ARVI’ ir ko v Valstybinė mokesčių inspekcija prie Lietuvos Respublikos finansų ministerijos

(Case C-56/21) (1)

(Reference for a preliminary ruling - Taxation - Common system of value added tax (VAT) - Directive 2006/112/EC - Article 137 - Optional tax liability scheme - Conditions - National legislation which makes the right of a taxable person to opt to charge VAT on the sale of immovable property conditional on the transfer of that property to a taxable person already registered for VAT purposes - Obligation to adjust VAT deductions where that condition is not satisfied - Principles of fiscal neutrality, of effectiveness and of proportionality)

(2022/C 318/10)

Language of the case: Lithuanian

Referring court

Mokestinių ginčų komisija prie Lietuvos Respublikos vyriausybės

Parties to the main proceedings

Applicant: UAB ‘ARVI’ ir ko

Defendant: Valstybinė mokesčių inspekcija prie Lietuvos Respublikos finansų ministerijos

Operative part of the judgment

| 1. | Articles 135 and 137 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as not precluding national legislation which makes the right of a taxable person to opt to charge value added tax (VAT) on the sale of immovable property conditional on the transfer of that property to a taxable person who, at the time of conclusion of the transaction, is already registered for VAT purposes; |
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1.

Articles 135 and 137 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as not precluding national legislation which makes the right of a taxable person to opt to charge value added tax (VAT) on the sale of immovable property conditional on the transfer of that property to a taxable person who, at the time of conclusion of the transaction, is already registered for VAT purposes;

| 2. | The provisions of Directive 2006/112 and the principles of fiscal neutrality, of effectiveness and of proportionality must be interpreted as not precluding national legislation and practice under which the seller of immovable property is required to adjust the deduction of input VAT on that property following the refusal to recognise the seller’s right of option for taxation in respect of that sale on the ground that, at the time of the sale, the purchaser did not satisfy the conditions laid down in order for the seller to exercise that right. Although the actual use of the immovable property in question by the purchaser in connection with activities subject to VAT is irrelevant in that regard, the competent authorities are nevertheless required to ascertain whether there has been fraud or abuse on the part of the taxable person who intended to exercise the right of option for taxation in respect of the transaction in question. |
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2.

The provisions of Directive 2006/112 and the principles of fiscal neutrality, of effectiveness and of proportionality must be interpreted as not precluding national legislation and practice under which the seller of immovable property is required to adjust the deduction of input VAT on that property following the refusal to recognise the seller’s right of option for taxation in respect of that sale on the ground that, at the time of the sale, the purchaser did not satisfy the conditions laid down in order for the seller to exercise that right. Although the actual use of the immovable property in question by the purchaser in connection with activities subject to VAT is irrelevant in that regard, the competent authorities are nevertheless required to ascertain whether there has been fraud or abuse on the part of the taxable person who intended to exercise the right of option for taxation in respect of the transaction in question.

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(1)  OJ C 128, 12.4.2021.

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