CELEX: C2001/173/24
Language: en
Date: 2001-06-16 00:00:00
Title: Judgment of the Court (Fifth Chamber) of 8 March 2001 in Case C-415/98 (reference for a preliminary ruling from the Bundesfinanzhof): Laszlo Bakcsi v Finanzamt Fürstenfeldbruck (VAT — Articles 2(1), 5(6) and 11.A(1)(a) of the Sixth VAT Directive — Mixed-use goods — Incorporation into the private or business assets of a taxable person — Sale of a business asset — Second-hand item purchased from a private individual)

16.6.2001                EN                      Official Journal of the European Communities                                           C 173/15
                 JUDGMENT OF THE COURT                                            person withdraws, such an item from his business, the value
                                                                                  added tax on that item must be considered not to be deductible
                                                                                  for the purposes of Article 5(6) of the Sixth Directive and no
                           (Fifth Chamber)                                        tax may therefore be levied on that withdrawal under that
                                                                                  provision. If the taxable person subsequently sells the item, he
                          of 8 March 2001                                         will be carrying out that transaction in a private capacity and
                                                                                  the transaction will therefore be excluded from the system of
                                                                                  value added tax.
in Case C-415/98 (reference for a preliminary ruling
from the Bundesfinanzhof): Laszlo Bakcsi v Finanzamt
                        Fürstenfeldbruck (1)                                (1) OJ C 20 of 23.1.1999.
(VAT — Articles 2(1), 5(6) and 11.A(1)(a) of the Sixth VAT
Directive — Mixed-use goods — Incorporation into the
private or business assets of a taxable person — Sale of a
business asset — Second-hand item purchased from a private
                              individual)
                           (2001/C 173/24)                                                   JUDGMENT OF THE COURT
                                                                                                      of 8 March 2001
                   (Language of the case: German)
                                                                            in Case C-215/99 (reference for a preliminary ruling
(Provisional translation; the definitive translation will be published      from the Landesgericht Feldkirch): Friedrich Jauch v
                    in the European Court Reports)                                  Pensionsversicherungsanstalt der Arbeiter (1)
In Case C-415/98: reference to the Court under Article 177 of               (Social security for migrant workers — Austrian scheme of
the EC Treaty (now Article 234 EC) from the Bundesfinanzhof                 insurance against the risk of reliance on care — Classifi-
(Federal Finance Court) (Germany) for a preliminary ruling in               cation of benefits and lawfulness of the residence condition
the proceedings pending before that court between Laszlo                       from the point of view of Regulation (EEC) No 1408/71)
Bakcsi and Finanzamt Fürstenfeldbruck on the interpretation
of Sixth Council Directive 77/388/EEC of 17 May 1977 on                                                (2001/C 173/25)
the harmonisation of the laws of the Member States relating
to turnover taxes — Common system of value added tax:
uniform basis of assessment (OJ 1977 L 145, p. 1) — the
Court (Fifth Chamber), composed of: D.A.O. Edward, acting as                                    (Language of the case: German)
President of the Fifth Chamber, P. Jann and L. Sevón (Rappor-
teur), Judges; A. Saggio, Advocate General; L. Hewlett, Admin-
istrator, for the Registrar, has given a judgment on 8 March                (Provisional translation; the definitive translation will be published
2001, in which it has ruled:                                                                    in the European Court Reports)
1.    A taxable person who acquires a capital item in order to use it       In Case C-215/99: reference to the Court under Article 177 of
      for both business and private purposes may retain it wholly           the EC Treaty (now Article 234 EC) from the Landesgericht
      within his private assets and thereby exclude it entirely from the    (Regional Court) Feldkirch, Austria for a preliminary ruling in
      system of value added tax.                                            the proceedings pending before that court between Friedrich
                                                                            Jauch and Pensionsversicherungsanstalt der Arbeiter — on
2.    Where a taxable person has chosen to incorporate wholly into          the interpretation of Articles 10a(1) and 19(1) of Council
      his business assets a capital item which he uses for both business    Regulation (EEC) No 1408/71 of 14 June 1971 on the
      and private purposes, the sale of that item is subject in full to     application of social security schemes to employed persons, to
      value added tax, in accordance with Articles 2(1) and                 self-employed persons and to members of their families
      11.A(1)(a) of Sixth Council Directive 77/388/EEC of 17 May            moving within the Community, as amended and updated by
      1977 on the harmonisation of the laws of the Member States            Council Regulation (EC) No 118/97 of 2 December 1996 (OJ
      relating to turnover taxes — Common system of value added             1997 L 28, p. 1) — the Court, composed of: G.C. Rodrı́guez
      tax: uniform basis of assessment. Where a taxable person              Iglesias, President, C. Gulmann, A. La Pergola, M. Wathelet,
      assigns to his business assets only the part of the item used for     V. Skouris (Presidents of Chambers), D.A.O. Edward,
      business purposes, only the sale of that part is subject to value     J.-P. Puissochet (Rapporteur), P. Jann, L. Sevón, R. Schintgen,
      added tax. The fact that the item was purchased second-hand           F. Macken, N. Colneric, S. von Bahr, J.N. Cunha Rodrigues and
      from a non-taxable person and that the taxable person was             C.W.A. Timmermans, Judges; S. Alber, Advocate General; H.A.
      therefore not authorised to deduct the residual value added tax       Rühl, Principal Administrator, for the Registrar, has given a
      on that item is irrelevant in this regard. However, if the taxable    judgment on 8 March 2001, in which it has ruled: