CELEX: C2003/070/16
Language: en
Date: 2003-03-22 00:00:00
Title: 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

C 70/10                 EN                         Official Journal of the European Union                                        22.3.2003
2.    Publ i c s to rag e of cerea l s                                     (Federal Finance Court) of 29 August 2002, received at the
                                                                           Court Registry on 23 January 2003, for a preliminary ruling
The Commission claims that the AIMA, since abolished, in the               in the proceedings between Finanzamt Bergisch Gladbach and
                                                                           Hans U. Hundt-Eßwein on the following questions:
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               1.    Is a person who purchases or builds a house for his own
the date for setting the price was the date of first actual delivery             residential purposes acting as a taxable person in the
by the offeror. In the Commission’s view, that entailed a                        purchasing or building of that residence if he intends to
greater expenditure for the EAGGF than it might otherwise                        use one of its rooms as a ‘home office’ for engaging in a
have been liable for if the AIMA, while not having fixed the                     sideline activity as a self-employed person?
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                If Question 1 is answered in the affirmative:
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           2.    Where a community by undivided shares or marital
calculating the price to be paid for takeover of the goods.                      community which does not itself operate as a business
Moreover, the regulation itself empowers the intervention                        places an order in common for a capital item, should it
agency to lay down the delivery schedule, so that AIMA                           be assumed that the purchase concerned is made by a
assumes the schedule agreed between the storekeeper and the                      non-taxable person who is not entitled to deduct the
offeror.                                                                         value added tax charged on the purchase as input tax, or
                                                                                 are the members of that community recipients of the
                                                                                 transaction performed?
3.    Premi um i n th e ra w to bac co sect or
A review by the European Court of Auditors has shown an                    If Question 2 is answered in the affirmative:
error consisting in failure to observe the guarantee threshold
in respect of the 01 tobacco variety for the 1998 marketing
year.                                                                      3.    Where spouses in a community by undivided shares
                                                                                 purchase a capital item but that item is used by only one
Such an error did not lead to the specific guarantee threshold                   of those two spouses for the purposes of his business:
for the remaining varieties being exceeded in the year in
question.                                                                        (a)   is that spouse entitled to effect only a pro rata
                                                                                       deduction in respect of the input tax attributable to
( 1) Commission Decision of 5 November 2002 excluding from
                                                                                       his share as purchaser,
     Community financing certain expenditure incurred by the Member
     States under the Guarantee Section of the European Agricultural                   or
     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.                                                       (b) is that spouse entitled under Article 17(2)(a) of
( 4) OJ 1992 L 74, p. 18.                                                              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/
Reference for a preliminary ruling by the Bundesfinanz-                          EEC, must he hold an invoice, as provided for under
hof by order of that Court of 29 August 2002 in the                              Article 22(3) of the directive, which has been issued to
proceedings between Finanzamt Bergisch Gladbach and                              him alone and states the proportion of the payments and
                      Hans U. Hundt-Eßwein                                       corresponding tax attributable to him, or is it sufficient
                                                                                 for the spouses/co-owners to be issued with the invoice
                          (Case C-25/03)                                         without any such apportionment of the amounts due?
                          (2003/C 70/16)
                                                                           (1 ) OJ L 145 of 13.06.1977, p. 1.
Reference has been made to the Court of Justice of the
European Communities by order of the Bundesfinanzhof