Opinion of the Advocate General — ECLI:EU:C:2004:710
Date: 2004-11-11
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 1. Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Taxable persons – Definition – Person having acquired a building in order to live in it with his family, but using a part of it for the purposes of carrying out an economic activity and allocating that part to the assets of his business – Included (Council Directive 77/388, Arts 2, 4 and 17) 2. Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Deduction of input tax – Acquisition of a capital item by a marital community – Classification of co-owning spouses as recipients of the transaction implying a right to deduct for each of them taken individually (Council Directive 77/388, Art. 17) 3. Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Deduction of input tax – Acquisition of a capital item by two spouses forming a community by marriage – Use of part of the item by one of the co-owners for the purposes of his business – Right of that co-owner to deduct all the tax attributable to that part – Condition – Amount deducted not exceeding the limits of the taxable person’s interest in the co-ownership of that item (Council Directive 77/388, Art. 17) 4. Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Deduction of input tax – Obligations of the taxable person – Holding of an invoice containing certain information – Acquisition of a building by two spouses forming a community by marriage – Use of part of the building by one of the co-owners for business purposes – Requirement for the latter to hold an invoice issued in his name and stating the proportions of the payments and tax corresponding to his interest in the property held in co-ownership – None (Council Directive 77/388, Arts 18(1)(a) and 22(3)) 1. Where a person purchases a house, or has a house built, in order to live in it with his family he is acting as a taxable person, and is thus entitled to make deductions under Article 17 of Sixth Directive 77/388, both in its original version and following its amendment by Directive 91/680, in so far as he uses one room in that building as an office for the purposes of carrying out an economic activity, albeit an ancillary one, within the meaning of Articles 2 and 4 of the directive and allocates that part of the building to the assets of his business. (see para. 52, operative part) 2. Where a marital community which does not have legal personality and does not itself carry out an economic activity within the meaning of Sixth Directive 77/388, both in its original version and following its amendment by Directive 91/680, places an order for a capital item, the co-owners forming that community are to be regarded as recipients of the transaction for the purposes of the directive. Given that the community is not a taxable person and, on that account, cannot deduct input tax, any such entitlement to deduct must, in accordance with the principle of neutrality, be granted to the spouses taken individually in so far as they have the status of taxable person. (see paras 57-58, operative part) 3. Where spouses forming a community by marriage purchase a capital item, part of which is used exclusively for business purposes by one of the co-owning spouses, that spouse is entitled to deduct in respect of all the input value added tax attributable to the share of the item which he uses for the purposes of his business, in so far as the amount deducted does not exceed the limits of the taxable person’s interest in the co-ownership of the item. If the operator in question could deduct only a proportion of the tax which he has paid in respect of the part which is used entirely for his taxable transactions – a proportion calculated by reference to his interest in the co-ownership of the building as a whole – he would not be relieved entirely of the burden of the tax relating to the item which he uses for the purposes of his economic activity, contrary to the requirements of the principle of neutrality. (see paras 71, 74, operative part) 4. Articles 18(1)(a) and 22(3) of Sixth Directive 77/388, both in its original version and following its amendment by Directive 91/680, do not require, in order to be able to exercise the right to deduct, a taxable person who has acquired in community with his spouse a building, part of which is used for business purposes, to hold an invoice issued in his name and stating the proportions of the payments and value added tax corresponding to his interest in the property held in co-ownership. An invoice issued to the co-owning spouses without distinguishing between them and without reference to such apportionment is sufficient for that purpose. (see para. 83, operative part)