28.11.2022
EN
Official Journal of the European Union
C 451/5
must be interpreted as meaning that a taxable person is under an obligation to adjust deductions of input value added tax (VAT) relating to the acquisition of goods or services intended to produce capital goods in the case where, as a result of the decision of the owner or sole shareholder of that taxable person to place it in liquidation and of the taxable person’s request to be removed, and it being removed, from the register of VAT payers, the capital goods produced have not been used — and will never be used — in the course of taxable economic activities.
The reasons for the decision to place that taxable person in liquidation and, consequently, for the abandonment of the intended taxable economic activity, such as constantly growing losses, the absence of orders and the doubts of the taxable person’s shareholder as to the profitability of the intended economic activity, have no bearing on the taxable person’s obligation to adjust the deductions of VAT concerned, in so far as that taxable person no longer has — and will never have — any intention of using the capital goods for the purposes of taxable transactions.
(1)
OJ C 289, 19.7.2021.
Judgment of the Court (Eighth Chamber) of 6 October 2022 (requests for a preliminary ruling from the Corte suprema di cassazione — Italy) — Agenzia delle Entrate v Contship Italia SpA (Joined Cases C-433/21 and C-434/21) (1) (References for a preliminary ruling — Direct taxation — Freedom of establishment — Corporate income tax — Measures to prevent tax avoidance by shell companies — Determination of taxable income on the basis of presumed minimum income — Exclusion from the scope of those measures of companies and entities listed on national regulated markets) (2022/C 451/06) Language of the case: Italian Referring court Corte suprema di cassazione
Parties to the main proceedings Applicant: Agenzia delle Entrate
Defendant: Contship Italia SpA
Operative part of the judgment Article 49 TFEU must be interpreted as not precluding national legislation which restricts the ground for exclusion from the scope of the measures to prevent tax avoidance by shell companies to companies whose securities are traded on national regulated markets, excluding from the scope of that ground for exclusion other companies, whether national or foreign, whose securities are not traded on national regulated markets but which are controlled by companies and entities listed on foreign regulated markets.
(1)
OJ C 422, 18.10.2021.