Staatssecretaris van Financiën v Het Oudeland Beheer BV.
Date: 2016-04-28
30


That option allows Member States to develop their tax law in such a way that businesses which, owing to the fact that they are engaged in an activity which is exempt from VAT, cannot deduct the VAT that they have paid on acquiring their business goods are not placed at a disadvantage as compared with competitors engaged in the same activity who use goods which they have obtained without paying VAT, by producing the goods themselves or, more generally, by obtaining them in the course of their business (judgment of 8 November 2012 in Gemeente Vlaardingen, C‑299/11, EU:C:2012:698, paragraph 26).
32


In the first place, the relevant goods must be ‘goods produced, constructed, extracted, processed, … in the course of [the] business [of a taxable person]’. The Court has held that, for the option of treating such goods as supplies made for consideration to be applied so that any inequality relating to VAT is actually eliminated between taxable persons which have acquired their goods from another taxable person and those who have acquired them in the course of their business, Article 5(7)(a) of the Sixth Directive covers not only goods entirely produced, constructed, extracted or processed by the business concerned itself, but also goods produced, constructed, extracted or processed by a third party with materials provided by that business, since the option of treating such goods as supplies made for consideration must be capable of being extended to all goods completed or improved by the third party (see, to that effect, judgments of 8 November 2012 in Gemeente Vlaardingen, C‑299/11, EU:C:2012:698, paragraphs 27 and 28, and 10 September 2014 in Gemeente ’s-Hertogenbosch, C‑92/13, EU:C:2014:2188, paragraph 28).
38


The Court has stated, in that regard, that it clearly 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’ (judgment of 23 April 2015 in Property Development Company, C‑16/14, EU:C:2015:265, paragraph 37).
41


In that regard, the Court has stated that the option of treating certain applications as supplies made for consideration cannot be used in order to charge VAT on the value of goods on which the taxable person has already, in the context of an earlier tax period, paid VAT (see, to that effect, judgment of 8 November 2012 in Gemeente Vlaardingen, C‑299/11, EU:C:2012:698, paragraph 32).
42


Such repeated taxation would be incompatible both with the essential characteristic of VAT that it be imposed on the added value of the goods or services concerned, since the tax payable on a transaction is calculated after the tax paid on the preceding transaction has been deducted (see, inter alia, judgments of 16 December 1992 in Beaulande, C‑208/91, EU:C:1992:524, paragraph 14; 17 September 1997 in UCAL, C‑347/95, EU:C:1997:411, paragraph 34, and 29 April 2004 in GIL Insurance and Others, C‑308/01, EU:C:2004:252, paragraph 33), and with the aim of the above option, which is, it is true, intended to enable Member States to charge VAT on the application of goods for the purposes of activities exempt from VAT, but in no way authorises Member States to levy VAT several times on the same element of the value of those goods (judgment of 8 November 2012 in Gemeente Vlaardingen, C‑299/11, EU:C:2012:698, paragraph 32).
44


In that regard, the Court has held 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 (see judgment of 23 April 2015 in Property Development Company, C‑16/14, EU:C:2015:265, paragraph 42 and the case-law cited).
55


If the supply, within the meaning of Article 5(7)(a) of the Sixth Directive, does not take place at the same time as the grant of the long leasehold, but later, the value of that right to be taken into account in the taxable amount corresponds to the residual value of the right at the time of its supply (see, by analogy, judgments of 17 May 2001 in Fischer and Brandenstein, C‑322/99 and C‑323/99, EU:C:2001:280, paragraph 80, and 8 May 2013 in Marinov, C‑142/12, EU:C:2013:292, paragraph 32).