Case C-25/03: Reference for a preliminary ruling by the Bundesfinanzhof by order of that Court of 29 August 2002 in the proceedings between Finanzamt Bergisch Gladbach and Hans U. Hundt-Eßwein
Date: 2003-03-22
Institutions: Court of Justice
Subjects: VAT, housing, interpretation of the law, joint ownership, multi-storey dwelling, tax relief, tax system, taxpayer

C 70/10

EN

Official Journal of the European Union

22.3.2003

2.

P u b l i c s t o r a g e o f c e r e a l s

The Commission claims that the AIMA, since abolished, in the
course of taking over cereals during the marketing year 1997-
1998, failed to fix the first day on which the consignment was
taken over in the communication accepting the offer, so that
the date for setting the price was the date of first actual delivery
by the offeror.
In the Commission’s view, that entailed a
greater expenditure for the EAGGF than it might otherwise
have been liable for if the AIMA, while not having fixed the
delivery date beforehand, had nevertheless taken as a reference
date the day following the date of the letter of acceptance of
the offer, when delivery could potentially have begun. AGEA,
the paying agency, does not agree with the position adopted
by the Commission inasmuch as Regulation No 689/92 (4)
does not provide at all for the day following the date of the
letter of acceptance of the offer being adopted as the basis for
calculating the price to be paid for takeover of the goods.
Moreover, the regulation itself empowers the intervention
agency to lay down the delivery schedule, so that AIMA
assumes the schedule agreed between the storekeeper and the
offeror.

3.

P r e m i u m i n t h e r a w t o b a c c o s e c t o r

A review by the European Court of Auditors has shown an
error consisting in failure to observe the guarantee threshold
in respect of the 01 tobacco variety for the 1998 marketing
year.

Such an error did not lead to the specific guarantee threshold
for the remaining varieties being exceeded in the year in
question.

( 1) Commission Decision of 5 November 2002 excluding from
Community financing certain expenditure incurred by the Member
States under the Guarantee Section of the European Agricultural
Guidance and Guarantee Fund (EAGGF), OJ 2002 L 306, p. 26.

( 2) OJ 1996 L 297, p. 1.
( 3) OJ 1997 L 100, p. 22.
( 4) OJ 1992 L 74, p. 18.

Reference for a preliminary ruling by the Bundesfinanz-
hof by order of that Court of 29 August 2002 in the
proceedings between Finanzamt Bergisch Gladbach and
Hans U. Hundt-Eßwein

(Case C-25/03)

(2003/C 70/16)

Reference has been made to the Court of Justice of the
the Bundesfinanzhof
European Communities by order of

(Federal Finance Court) of 29 August 2002, received at the
Court Registry on 23 January 2003, for a preliminary ruling
in the proceedings between Finanzamt Bergisch Gladbach and
Hans U. Hundt-Eßwein on the following questions:

1.

Is a person who purchases or builds a house for his own
residential purposes acting as a taxable person in the
purchasing or building of that residence if he intends to
use one of its rooms as a ‘home office’ for engaging in a
sideline activity as a self-employed person?

If Question 1 is answered in the affirmative:

2. Where a community by undivided shares or marital
community which does not itself operate as a business
places an order in common for a capital item, should it
be assumed that the purchase concerned is made by a
non-taxable person who is not entitled to deduct the
value added tax charged on the purchase as input tax, or
are the members of that community recipients of the
transaction performed?

If Question 2 is answered in the affirmative:

3. Where spouses in a community by undivided shares
purchase a capital item but that item is used by only one
of those two spouses for the purposes of his business:

(a)

is that spouse entitled to effect only a pro rata
deduction in respect of the input tax attributable to
his share as purchaser,

or

(b)

is that spouse entitled under Article 17(2)(a) of
Directive 77/388/EEC (1) to deduct as input tax the
proportion attributable to his business use of the
item as a whole (subject to the invoicing require-
ments set out in Question 4)?

4.

For that spouse/co-owner to exercise his right to deduct
in accordance with Article 18 of Directive 77/388/
EEC, must he hold an invoice, as provided for under
Article 22(3) of the directive, which has been issued to
him alone and states the proportion of the payments and
corresponding tax attributable to him, or is it sufficient
for the spouses/co-owners to be issued with the invoice
without any such apportionment of the amounts due?

(1) OJ L 145 of 13.06.1977, p. 1.