Property Development Company NV v Belgische Staat.
Date: 2015-04-23
33. It must be recalled, first of all, that the rule laid down in Article 11A(1)(b) of the Sixth Directive, according to which the taxable amount in respect of supplies referred to in Article 5(6) and (7) thereof, is to be ‘the purchase price of the goods or of similar goods or, in the absence of a purchase price, the cost price, determined as the time of supply’, derogates from the general rules laid down in Article 11A(1)(a) thereof, according to which the taxable amount of transactions subject to VAT is to be ‘everything which constitutes the consideration which has been or is to be obtained by the supplier from the purchaser, the customer or a third party for such supplies’ (see, by analogy, judgment in Marinov , C‑142/12, EU:C:2013:292, paragraph 31).
34. The transactions referred to in Article 5(6) and (7) of the Sixth Directive consist, inter alia, of the application by a taxable person of goods forming part of his business assets for his private use or that of his staff, or, as in the present case, their application for an economic activity exempt from VAT. In each of those cases involving treatment of a transaction as one effected for consideration, no true consideration which may serve as the taxable amount for the calculation of VAT is actually obtained by the taxable person from a purchaser, a customer or a third party, with the consequence that the general rule laid down in Article 11A(1)(a) cannot be applied (see, to that effect, judgment in Campsa Estaciones de Servicio , C‑285/10, EU:C:2011:381, paragraphs 26 and 27).
35. Next, it must be observed that, if the goods which are the subject of an application within the meaning of Article 5(6) and (7) of the Sixth Directive have been purchased by the taxable person, the taxable amount for the calculation of the VAT on that application is, according to Article 11A(1)(b) thereof, to be the purchase price of those goods. For that purpose, ‘purchase price of the goods’ means the residual value of the goods at the time of the allocation (judgments in Fischer and Brandenstein , C‑322/99 and C‑323/99, EU:C:2001:280, paragraph 80, and Marinov , C‑142/12, EU:C:2013:292, paragraph 32).
37. As to the remainder, it follows from Article 11A(1)(b) that it is only in the absence of a purchase price for the goods or similar goods that the taxable amount is the ‘cost price’.
39. For the purposes of the calculation based on that taxable amount, it is important that the goods whose purchase price is taken into consideration are buildings whose location, size and essential characteristics are similar to those of the building at issue (see, by analogy, judgment in Gemeente Vlaardingen , C‑299/11, EU:C:2012:698, paragraph 30).
42. Finally, it must be recalled that, in no case, may the taxable amount referred to in Article 11A(1)(b) of the Sixth Directive include an element of value on which the taxable person has already paid VAT without subsequently being able to deduct it. It is for the national court to carry out the necessary verifications in that regard (judgments in Gemeente Vlaarrdingen , C‑299/11, EU:C:2012:698, paragraphs 31 to 33, and Gemeente ’s Hertogenbosch , C‑92/13, EU:C:2014;2188, paragraph 35).