WRITTEN QUESTION P-0361/00

by Florence Kuntz (UEN) to the Commission

(4 February 2000)

Subject: Recovery of VAT on cars

A Luxembourg company is proposing that a French company should hire cars in the knowledge that invoices will be drawn up every three months, free of tax but with Luxembourg VAT. The Luxembourg company claims that the French company will be able to recover the VAT from Luxembourg. The proposed contract does not suggest a value for the repurchase or retrieval of the vehicles by the French company; when the contract expires the cars are given back to the Luxembourg company, which intends to resell them to a second-hand car dealership in Gibraltar, which will then be able to sell them on wherever it likes, possibly in France.

Can the Commission answer the following:

1. Can the French company recover the VAT from Luxembourg?

2. Can French drivers use cars registered in Luxembourg?

3. Can the Luxembourg company recover the VAT on private cars?

4. If the Gibraltar company sells a car which is over six months old, does it have to pay the VAT in France or Gibraltar? If so, is VAT payable on the total amount or the margin?

Answer given by Mr Bolkestein on behalf of the Commission

(14 March 2000)

1. Under Article 9(1) of the Sixth VAT Directive(1), car hire services are subject to VAT in the Member State where the supplier has established his business. In the case described, the VAT is therefore payable in Luxembourg. As the company established in France uses the cars for business purposes, it can recover the VAT paid in Luxembourg pursuant to the Eighth VAT Directive.

2. There is no Community tax provision prohibiting the use, as such, in the territory of a Member State by a person normally resident there, of a car registered in another Member State. However, under Directive 83/182/EEC(2), where a person uses a car registered in another Member State in the Member State where he is normally resident, taxes applicable in the Member State of normal residence, exemption from which is allowed by the Directive in cases of temporary importation, become payable in principle (this applies to road taxes, for example).

3. When acquiring private cars for use in the course of its taxable activities (car hire), the company established in Luxembourg may deduct VAT on its purchases. The right of deduction is a fundamental principle of VAT mainly designed to avoid any aggregation of taxation and thus ensure the neutrality of the system.

4. The common system of VAT is based on the principle of physical monitoring of goods to determine the place where their supply should be taxed. The place of taxation of a supply of goods, the sale of cars in the present case, depends on the place where the goods are when the supply takes place. The Member State of departure or arrival of the transport of goods, as the case may be, must be taken into account. The applicable rule also depends on the status of the purchaser (whether or not he is liable to VAT). Conversely, the place where the seller or purchaser is established need not be taken into account. Whether tax is payable on the selling price or on the margin also depends on the actual situation. The information provided is therefore insufficient to answer the question.

(1) OJ L 145, 13.6.1977.

(2) Council Directive 83/182/EEC of 28 March 1983 on tax exemptions within the Community for certain means of transport temporarily imported into one Member State from another (OJ L 105, 23.4.1983).