Paulo Nascimento Consulting - Mediação Imobiliária Lda v Autoridade Tributária e Aduaneira.
Date: 2019-10-17
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In that regard, in the first place, it follows from Article 2(1) of Directive 2006/112, which defines the scope of VAT, that, within the territory of a Member State, activities of an economic nature alone are subject to that tax. Pursuant to the first subparagraph of Article 9(1) of that directive, a taxable person is understood to mean any person who independently carries out in any place such an economic activity. The concept of economic activity is defined in the second subparagraph of Article 9(1) of Directive 2006/112 as encompassing any activity of producers, traders or persons supplying services and, more particularly, the exploitation of tangible or intangible property for the purposes of obtaining income therefrom on a continuing basis (judgment of 8 November 2018, C&D Foods Acquisition, C‑502/17, EU:C:2018:888, paragraph 29 and the case-law cited).
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It must be noted that the Court has already interpreted the first subparagraph of Article 9(1) of Directive 2006/112 in the case giving rise to the judgment of 13 June 2013, Kostov (C‑62/12, EU:C:2013:391), which raised the issue of the liability to VAT of transactions carried out on an occasional basis by a taxable person for VAT purposes in respect of his main activity, where that person’s secondary activity, while constituting an economic activity having a connection with his main activity, was not the same as that main activity. The Court held that a taxable person for VAT purposes in respect of an economic activity which he carries out permanently must be regarded as a ‘taxable person’ in respect of any other economic activity carried out occasionally, provided that that activity constitutes an activity within the meaning of the second subparagraph of Article 9(1) of Directive 2006/112 (see, to that effect, judgment of 13 June 2013, Kostov, C‑62/12, EU:C:2013:391, paragraph 31).
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It is also apparent from the case-law of the Court that the number and scale of the transactions cannot constitute a criterion for distinguishing between the activities of an operator acting in a private capacity, which fall outside the scope of that directive, and those of an operator whose transactions constitute an economic activity (see, to that effect, judgment of 15 September 2011, Słaby and Others, C‑180/10 and C‑181/10, EU:C:2011:589, paragraph 37 and the case-law cited).
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It is apparent from the case-law of the Court that it must be concluded that there is a single supply where two or more elements or acts supplied by the taxable person to the customer are so closely linked that they form, objectively, a single, indivisible economic supply, which it would be artificial to split (see, to that effect, judgments of 10 March 2011, Bog and Others, C‑497/09, C‑499/09, C‑501/09 and C‑502/09, EU:C:2011:135, paragraph 53, and of 10 November 2016, Baštová, C‑432/15, EU:C:2016:855, paragraph 70).
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If that were the case, the assignment transaction at issue in the main proceedings, which occurred, according to the observations submitted to the Court, the day before the judgment ordering the property concerned to be awarded became final, would consist in a transfer of tangible property — that is, immovable property — by one party which empowers another party actually to dispose of it as if he were its owner, which would amount to a supply of goods (see, to that effect, judgment of 27 March 2019, Mydibel, C‑201/18, EU:C:2019:254, paragraph 34 and the case-law cited). If that were not the case, the transaction at issue in the main proceedings would consist in the assignment of intangible property, the subject matter of which would be rights over immovable property, and would fall within the concept of the supply of services, in accordance with Article 25(a) of Directive 2006/112. It is for the referring court to conduct the necessary checks in that respect.
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As regards, next, whether that transaction falls within the exemption provided for in Article 135(1)(b) of Directive 2006/112 relating to ‘the granting and the negotiation of credit and the management of credit by the person granting it’, it must be pointed out that, as the Portuguese Government and the Commission noted in their observations and as the Advocate General emphasised in point 61 of his Opinion, the circumstances giving rise to the dispute in the main proceedings clearly do not relate to ‘credit’ consisting in making available an amount of capital, duly remunerated by the payment of interest, or in a deferred payment in the purchase price of goods agreed by a supplier in return for payment of interest remunerating that credit (see, to that effect, judgments of 11 July 1996, Régie dauphinoise, C‑306/94, EU:C:1996:290, paragraphs 16 to 19; of 29 April 2004, EDM, C‑77/01, EU:C:2004:243 paragraphs 65 to 70; and of 18 October 2018, Volkswagen Financial Services (UK), C‑153/17, EU:C:2018:845, paragraph 36 and the case-law cited). It is not apparent from the order for reference that the transaction at issue in the main proceedings entailed an obligation on Starplant to pay interest intended to remunerate any credit granted to it.