Judgment — ECLI:EU:C:2001:136
Date: 2001-03-08
Language of the case: German
Court formation: Fifth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Value added tax
Concepts: General
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 — Sixth Directive — Scope — Use of an item for both business and 
private purposes — Possibility for a taxable person to retain the item within his 
private assets and to exclude it entirely from the system of value added tax 
(Council Directive 77/388) 
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SUMMARY — CASE C-415/98 
2. Tax provisions — Harmonisation of laws — Turnover taxes — Common system of 
value added tax — Sixth Directive — Scope — Use of an item for both business and 
private purposes — Retention of the item within the private or business assets of the 
taxable person — Effect on the system of the tax in the event of the sale of the item 
(Council Directive 77/388, Arts 2(1), 5(6) and 11.A(1)(a)) 
1. A taxable person who acquires a capi­
tal item in order to use it for both 
business and private purposes may 
retain it wholly within his private 
assets and thereby exclude it entirely 
from the system of value added tax. 
The use, for business or private pur­
poses, to which a taxable person actu­
ally puts a capital item need be taken 
into account for the purpose of deter­
mining how that item has been 
assigned only if the taxable person 
requests the right to deduct, wholly or 
in part, the input value added tax paid 
in respect of the acquisition. 
The tax arrangements applicable to the 
supply of a capital item must be 
dissociated from those concerning the 
taxable expenses incurred for its use 
and maintenance. 
(see paras 29, 33 and 34, 
and operative part 1) 
2. Where a taxable person has chosen to 
incorporate wholly into his business 
assets a capital item which he uses for 
both business and private purposes, the 
sale of that item is subject in full to 
value added tax, in accordance with 
Articles 2(1) and 11.A(1)(a) of Sixth 
Directive 77/388 on the harmonisation 
of the laws of the Member States 
relating to turnover taxes. Where a 
taxable person assigns to his business 
assets only the part of the item used for 
business purposes, only the sale of that 
part is subject to value added tax. The 
fact that the item was purchased sec­
ond-hand from a non-taxable person 
and that the taxable person was there­
fore not authorised to deduct the 
residual value added tax on that item 
is irrelevant in this regard. However, if 
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BAKCSI 
the taxable person withdraws such an 
item from his business, the value added 
tax on that item must be considered not 
to be deductible for the purposes of 
Article 5(6) of the Sixth Directive and 
no tax may therefore be levied on that 
withdrawal under that provision. If the 
taxable person subsequently sells the 
item, he will be carrying out that 
transaction in a private capacity and 
the transaction will therefore be exclu­
ded from the system of value added 
tax. 
(see para. 47, and operative part 2) 
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