Finanzamt Freistadt Rohrbach Urfahr v Unabhängiger Finanzsenat Außenstelle Linz.
Date: 2013-06-20
16. Under Article 4(1) of the Sixth Directive, ‘taxable person’ means any person who independently carries out in any place any economic activity specified in paragraph 2 thereof, whatever the purpose or results of that activity. ‘Economic activity’ is defined in Article 4(2) as including all activities of producers, traders and persons supplying services, inter alia the exploitation of tangible or intangible property for the purpose of obtaining income therefrom on a continuing basis (see Case C‑284/04 T-Mobile Austria and Others  [2007] ECR I‑5189, paragraph 33, and Case C‑369/04 Hutchison 3G and Others  [2007] ECR I‑5247, paragraph 27).
17. The settled case-law of the Court states that an analysis of the definitions of ‘taxable person’ and ‘economic activities’ shows that the scope of the term ‘economic activities’ is very wide, and that the term is objective in character, in the sense that the activity is considered per se and without regard to its purpose or results (see T-Mobile Austria and Others , paragraph 35, and Hutchison 3G and Others , paragraph 29).
19. The issue of whether that activity is designed to obtain income on a continuing basis is an issue of fact which must be assessed having regard to all the circumstances of the case, which include the nature of the property concerned (see Case C‑263/11 Rēdlihs  [2012] ECR I‑0000, paragraph 33).
20. That criterion must also make it possible to determine whether an individual has used property in such a way that his activity is to be regarded as ‘economic activity’ within the meaning of the Sixth Directive. The fact that property is suitable only for economic exploitation will normally be sufficient for a finding that its owner is exploiting it for the purposes of economic activities and, consequently, for the purpose of obtaining income on a continuing basis. By contrast, if, by reason of its nature, property is capable of being used for both economic and private purposes, all the circumstances in which it is used will have to be examined in order to determine whether it is actually being used for the purpose of obtaining income on a continuing basis (see Case C‑230/94 Enkler  [1996] ECR I‑4517, paragraph 27, and Rēdlihs , paragraph 34).
21. In the latter case, comparing the circumstances in which the person concerned actually uses the property with the circumstances in which the corresponding economic activity is usually carried out may be one way of ascertaining whether the activity concerned is carried out for the purpose of obtaining income on a continuing basis (see Enkler , paragraph 28, and Rēdlihs , paragraph 35).
25. It is clear both from the wording of Article 4(1) of the Sixth Directive and the case-law of the Court that, for a finding that the exploitation of tangible or intangible property is carried out for the purpose of obtaining income therefrom, it is irrelevant whether or not that exploitation is intended to make a profit.
36. It should also be borne in mind that, according to the structure of the system introduced by the Sixth Directive, input taxes on goods or services used by a taxable person for his taxable transactions may be deducted. The deduction of input taxes is linked to the collection of output taxes. Where goods or services are used for the purposes of transactions that are taxable as outputs, deduction of the input tax on them is required in order to avoid double taxation (see Case C‑184/04 Uudenkaupungin kaupunki  [2006] ECR I‑3039, paragraph 24, and Case C‑72/05 Wollny  [2006] ECR I‑8297, paragraph 20).