# C_2008116EN.01000701.xml

| 9.5.2008 | EN | Official Journal of the European Union | C 116/7 |
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9.5.2008

EN

Official Journal of the European Union

C 116/7

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Judgment of the Court (Fourth Chamber) of 13 March 2008 (reference for a preliminary ruling from the Niedersächsisches Finanzgericht, Germany) — Securenta Göttinger Immobilienanlagen und Vermögensmanagement AG v Finanzamt Göttingen

(Case C-437/06) (1)

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(Sixth VAT Directive - Taxable person simultaneously carrying out economic activities, taxable or exempt, and non-economic activities - Right to deduct input VAT - Expenditure connected with the issue of shares and atypical silent partnerships - Apportionment of input VAT according to the economic nature of the activity - Calculation of the deductible proportion)

(2008/C 116/11)

Language of the case: German

Referring court

Niedersächsisches Finanzgericht

Parties to the main proceedings

Applicant: Securenta Göttinger Immobilienanlagen und Vermögensmanagement AG

Applicant:

Defendant: Finanzamt Göttingen

Defendant:

Re:

Reference for a preliminary ruling — Niedersächsisches Finanzgericht — Interpretation of Articles 2, point 1, and 17(5) of Directive 77/388/EEC: Sixth Council Directive of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Issue of silent partnerships by a limited company on an increase in its capital — Supply for consideration within the meaning of Article 2, point 1 — Deductibility of VAT conditional on a direct and immediate link with the taxable person's business activity — Whether deductible in part under Article 17(5) of the Directive

Operative part of the judgment

| 1. | Where a taxpayer simultaneously carries out economic activities, taxed or exempt, and non-economic activities outside the scope of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, deduction of the VAT relating to expenditure connected with the issue of shares and atypical silent partnerships is allowed only to the extent that that expenditure is attributable to the taxpayer's economic activity within the meaning of Article 2(1) of that directive. |
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1.

Where a taxpayer simultaneously carries out economic activities, taxed or exempt, and non-economic activities outside the scope of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, deduction of the VAT relating to expenditure connected with the issue of shares and atypical silent partnerships is allowed only to the extent that that expenditure is attributable to the taxpayer's economic activity within the meaning of Article 2(1) of that directive.

| 2. | The determination of the methods and criteria for apportioning input VAT between economic and non-economic activities within the meaning of the Sixth Directive is in the discretion of the Member States who, when exercising that discretion, must have regard to the aims and broad logic of that directive and, on that basis, provide for a method of calculation which objectively reflects the part of the input expenditure actually to be attributed, respectively, to those two types of activity. |
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2.

The determination of the methods and criteria for apportioning input VAT between economic and non-economic activities within the meaning of the Sixth Directive is in the discretion of the Member States who, when exercising that discretion, must have regard to the aims and broad logic of that directive and, on that basis, provide for a method of calculation which objectively reflects the part of the input expenditure actually to be attributed, respectively, to those two types of activity.

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(1)  OJ C 326, 30.12.2006.

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