Case C-174/08: Judgment of the Court (Fourth Chamber) of 29 October 2009 (reference for a preliminary ruling from the Østre Landsret (Denmark)) — NCC Construction Danmark A/S v Skatteministeriet (Sixth VAT Directive — Article 19(2) — Deduction of input tax — Hybrid taxable person — Goods and services used for both taxable and exempt activities — Calculation of the deductible proportion — Definition of incidental real estate transactions — Self-supply — Principle of fiscal neutrality)
Date: 2009-10-29
Institutions: Court of Justice
Subjects: Denmark, VAT, building industry, interpretation of the law, overheads, sale, tax exemption, tax relief








C_2009312EN.01000601.xml










19.12.2009   


EN


Official Journal of the European Union


C 312/6





Judgment of the Court (Fourth Chamber) of 29 October 2009 (reference for a preliminary ruling from the Østre Landsret (Denmark)) — NCC Construction Danmark A/S v Skatteministeriet
(Case C-174/08) (1)

(Sixth VAT Directive - Article 19(2) - Deduction of input tax - Hybrid taxable person - Goods and services used for both taxable and exempt activities - Calculation of the deductible proportion - Definition of ‘incidental real estate transactions’ - Self-supply - Principle of fiscal neutrality)
2009/C 312/08
Language of the case: Danish

Referring court

Østre Landsret

Parties to the main proceedings


Applicant: NCC Construction Danmark A/S

Defendant: Skatteministeriet

Re:

Reference for a preliminary ruling — Østre Landsret — Interpretation of the second sentence of Article 19(2) of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment — Building business engaged in the sale of buildings constructed by it on its own account with a view to resale — Goods and services used for activities which do and do not give rise to entitlement to deduct VAT paid upstream — Calculation of pro rata deduction — Concept of incidental real estate transactions

Operative part of the judgment







1.


Article 19(2) of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment is to be interpreted as meaning that the sale, in the case of a building business, of buildings constructed on its own account cannot be classified as an ‘incidental real estate transaction’ within the meaning of that provision, where that activity constitutes the direct, permanent and necessary extension of its business. In those circumstances, it is not necessary, in this case, to assess to what extent that sales activity, viewed separately, entails a use of goods and services on which value added tax is payable.










2.


The principle of fiscal neutrality cannot preclude a building business, which is required to pay value added tax on supplies relating to construction effected on its own account (self-supply), from being unable fully to deduct the value added tax relating to the general costs incurred thereby, since the turnover from the sale of buildings thus constructed is exempt from value added tax.






(1)  OJ C 171, 5.7.2008.