# C_2022222EN.01001601.xml

| 7.6.2022 | EN | Official Journal of the European Union | C 222/16 |
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7.6.2022

EN

Official Journal of the European Union

C 222/16

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Request for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 9 March 2022 — Finanzamt Hamm v Harry Mensing

(Case C-180/22)

(2022/C 222/27)

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Appellant in the appeal on a point of law: Finanzamt Hamm

Respondent in the appeal on a point of law: Harry Mensing

Questions referred

| 1. | In circumstances such as those in the main proceedings, in which a taxable person relies, on the basis of the judgment in Mensing, (1) on the fact that the supply of works of art that were supplied to him in the context of an exempt intra-Community supply by the creator (or his successors in title) also falls under the margin scheme of Article 311 et seq. of Directive 2006/112/EC, (2) is the taxable amount to be determined, in accordance with paragraph 49 of that judgment, exclusively on the basis of EU law, with the result that it is not permissible for the national court adjudicating at last instance to interpret a provision of national law (in the present case: the third sentence of Paragraph 25a(3) of the Umsatzsteuergesetz (the Law on turnover tax) to the effect that the tax due on the intra-Community acquisition does not form part of the taxable amount? |
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1.

In circumstances such as those in the main proceedings, in which a taxable person relies, on the basis of the judgment in Mensing, (1) on the fact that the supply of works of art that were supplied to him in the context of an exempt intra-Community supply by the creator (or his successors in title) also falls under the margin scheme of Article 311 et seq. of Directive 2006/112/EC, (2) is the taxable amount to be determined, in accordance with paragraph 49 of that judgment, exclusively on the basis of EU law, with the result that it is not permissible for the national court adjudicating at last instance to interpret a provision of national law (in the present case: the third sentence of Paragraph 25a(3) of the Umsatzsteuergesetz (the Law on turnover tax) to the effect that the tax due on the intra-Community acquisition does not form part of the taxable amount?

| 2. | If the answer to Question 1 is in the affirmative: is Article 311 et seq. of Directive 2006/112 to be understood as meaning that, where the margin scheme is applied to supplies of works of art that were previously acquired from the creator (or his successors in title) within the Community, the tax due on the intra-Community acquisition reduces the profit margin, or is there an unintentional loophole in EU law in that respect that can only be removed by the EU legislature, not by the development of the law through case-law? |
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2.

If the answer to Question 1 is in the affirmative: is Article 311 et seq. of Directive 2006/112 to be understood as meaning that, where the margin scheme is applied to supplies of works of art that were previously acquired from the creator (or his successors in title) within the Community, the tax due on the intra-Community acquisition reduces the profit margin, or is there an unintentional loophole in EU law in that respect that can only be removed by the EU legislature, not by the development of the law through case-law?

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(1)  Judgment of 29 November 2018 (C-264/17, EU:C:2018:968).

(2)  Council Directive of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).

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