Szef Krajowej Administracji Skarbowej v Gmina Ryjewo.
Date: 2018-07-25
28


In order to answer that question, it should be recalled that, according to the settled case-law of the Court, the right of taxable persons to deduct the VAT due or already paid on goods purchased and services received as inputs from the VAT which they are liable to pay is a fundamental principle of the common system of VAT established by EU legislation (see, inter alia, judgment of 21 March 2018, Volkswagen, C‑533/16, EU:C:2018:204, paragraph 37).
29


The deduction rules are intended to relieve the taxable person entirely of the burden of the VAT payable or paid in the course of all its economic activities. The common system of VAT therefore ensures neutrality of taxation of all economic activities, whatever their purpose or results, provided that those activities are themselves, in principle, subject to VAT (see, to that effect, judgment of 21 March 2018, Volkswagen, C‑533/16, EU:C:2018:204, paragraph 38 and the case-law cited).
30


As the Court has repeatedly held, the right to deduct provided for in Article 167 et seq. of Directive 2006/112 is an integral part of the VAT scheme and in principle may not be limited. In particular, the right to deduct is exercisable immediately in respect of all the taxes charged on input transactions (judgment of 21 March 2018, Volkswagen, C‑533/16, EU:C:2018:204, paragraph 39 and the case-law cited).
33


The right to deduct VAT is, however, subject to compliance with both substantive and formal requirements or conditions (judgment of 21 March 2018, Volkswagen, C‑533/16, EU:C:2018:204, paragraph 40 and the case-law cited).
34


Thus, as regards those substantive requirements or conditions, it follows, according to the settled case-law of the Court, from Article 168 of Directive 2006/112 that only a person who is a taxable person and who is acting as such at the time of the purchase of goods has a right to deduct in respect of those goods and may deduct the VAT due or paid in respect of those goods if he uses them for the purposes of his taxable transactions (see, to that effect, judgments of 11 July 1991, Lennartz, C‑97/90, EU:C:1991:315, paragraph 8, and of 22 October 2015, Sveda, C‑126/14, EU:C:2015:712, paragraph 18 and the case-law cited).
35


In accordance with Articles 63 and 167 of Directive 2006/112, the right to deduct arises at the time when the deductible tax becomes chargeable, namely when the goods are delivered (judgment of 22 March 2012, Klub, C‑153/11, EU:C:2012:163, paragraph 36 and the case-law cited).
36


Those principles also apply in a situation in which the person in question is a body governed by public law claiming a right to adjustment of VAT deduction pursuant to Article 184 et seq. of Directive 2006/112 (see, to that effect, judgment of 2 June 2005, Waterschap Zeeuws Vlaanderen, C‑378/02, EU:C:2005:335, paragraph 39).
37


It follows that, where a public body such as, in this case, the municipality, at the time of the acquisition of capital goods, acts as a public authority, within the meaning of Article 13(1) of Directive 2006/112, and, consequently, as a non-taxable person, that body is not entitled, in principle, to adjust the deductions in respect of those goods, even if, subsequently, those goods are used for a taxable activity (see, to that effect, judgment of 2 June 2005, Waterschap Zeeuws Vlaanderen, C‑378/02, EU:C:2005:335, paragraph 44).
38


According to the settled case-law of the Court, the question whether, at the time when it received delivery of the goods, the taxable person was acting as a taxable person, namely for the purposes of an economic activity, is a question of fact which it is for the referring court to consider in the light of all the circumstances of the case, including the nature of the goods concerned and the period which elapsed between the acquisition of the goods and their use for the purposes of the taxable person’s economic activity (judgments of 11 July 1991, Lennartz, C‑97/90, EU:C:1991:315, paragraph 21, and of 22 October 2015, Sveda, C‑126/14, EU:C:2015:712, paragraph 21).
39


That assessment seeks to ascertain whether the taxable person acquired or produced the capital goods in question with the intention, confirmed by objective evidence, of carrying on an economic activity and, consequently, acted as a taxable person within the meaning of Article 9(1) of Directive 2006/112 (see, to that effect, judgment of 22 October 2015, Sveda, C‑126/14, EU:C:2015:712, paragraph 20).
51


By contrast, it is irrelevant that the goods in question were not immediately used for taxable transactions, since the use to which goods are put merely determines the extent of the initial deduction or the extent of any subsequent possible adjustments but does not affect the issue of whether a right to deduct arises (see, to that effect, judgment of 30 March 2006, Uudenkaupungin kaupunki, C‑184/04, EU:C:2006:214, paragraph 39).
57


That apportionment is specifically governed by the rules on proportionality of deduction contained in Articles 173 to 175 of Directive 2006/112. The calculation of a deductible proportion in order to determine the amount of deductible VAT is, in principle, reserved solely to goods and services used by a taxable person to carry out both economic transactions which give rise to a right to deduct and those which do not (see, inter alia, judgment of 14 December 2016, Mercedes Benz Italia, C‑378/15, EU:C:2016:950, paragraph 34).
58


Furthermore, the determination of the methods and criteria for apportioning input VAT between economic and non-economic activities lies in the discretion of the Member States, which, when exercising that discretion, must have regard to the aims and broad logic of that directive and must, on that basis, provide for a method of calculation which objectively reflects the part of the input expenditure actually to be attributed, respectively, to those two types of activity (judgment of 6 September 2012, Portugal Telecom, C‑496/11, EU:C:2012:557, paragraph 42).