Opinion of the Advocate General — ECLI:EU:C:2016:138
Date: 2016-03-03
Language of the case: Polish
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Poland

Summary — Judgment of the Court (Tenth Chamber), 16 June 2016 1. Harmonisation of fiscal legislation — Common system of value added tax — Deduction of input tax — Adjustment of the initial deduction — Aim (Council Directive 2006/112, Art. 18(a)) 2. Harmonisation of fiscal legislation — Common system of value added tax — Taxable transactions — Cessation of the taxable economic activity — Retention of goods on which VAT became deductible — Lawfulness — Expiry of the adjustment period — No effect (Council Directive 2006/112, Arts 18(c) and 184 to 192] 1. See the text of the decision. (see paras 27, 28, 39) 2. Article 18(c) of Directive 2006/112 on the common system of value added tax, as amended by Directive 2009/162 (VAT Directive) must be interpreted as meaning that, when a taxable person ceases to carry out a taxable economic activity, the retention of goods by that taxable person, where value added tax on such goods became deductible upon their acquisition, can be treated as a supply of goods for consideration and be subject to value added tax if the adjustment period laid down in Article 187 of the VAT Directive, has passed. It follows, first, from Article 18(c) of the VAT Directive that the retention of goods by a taxable person when he ceases to carry out a taxable economic activity may be treated as a supply of goods for consideration where VAT on those goods became wholly or partly deductible upon their acquisition. Article 18(c) of the VAT Directive provides for no other condition, in particular in respect of a period of time following acquisition during which there is to be a retention of goods after cessation of the activity in order for it to be subject to tax. Moreover, in so far as concerns its application, Article 18(c) does not refer to the provisions on the adjustment of deduction laid down in Articles 184 to 192 of the VAT Directive, unlike the second subparagraph of Article 168a(1) of that directive, which refers to those provisions for the taxation of immovable property for private use under Article 26 of the directive. Finally, the adjustment of deductions, which is made, inter alia, where, after the VAT return is made, some change occurs in the factors used to determine the amount of VAT, and which aims to ensure that the deductions made closely reflect the use of assets for business purposes, is a retroactive corrective mechanism. However, the taxation provided for in Article 18(c) of the VAT Directive is based on the occurrence of a new taxable transaction at the time the economic activity ceases. The taxation provided for in that article takes into account changes to the value of business assets throughout the duration of their use for business purposes. In the event of the cessation of the taxable economic activity, the taxable amount of the transaction is the value of the goods in question determined at the time of that cessation, which therefore takes into account the change in the value of those assets between their acquisition and the cessation. In order to achieve the objective of Article 18(c) of the VAT Directive, which is to avoid a situation where the final consumption of goods on which VAT became deductible is untaxed following the cessation of taxable economic activity, and to effectively eliminate any inequality for VAT purposes between consumers who acquire their goods from another taxable person and those who acquire their goods in the course of their business, taxation due under Article 18(c) of the VAT Directive must take place where goods on which VAT became deductible still have a residual value when the taxable economic activity ceases, regardless of the period of time between the date of purchase of those goods and the date on which the activity ceases. (see paras 33-39)