Ministero dell’Economia e delle Finanze v Part Service Srl.
Date: 2008-02-21
23. The tax office brought an appeal on a point of law against that judgment before the Corte suprema di cassazione (Supreme Court of Cassation).
34. In that regard, it should be borne in mind that, according to settled case-law, the Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Case C-35/99 Arduino [2002] ECR I-1529, paragraph 25, and Case C-13/05 Chacón Navas [2006] ECR I-6467, paragraph 33).
42. In paragraphs 74 and 75 of Halifax and Others , the Court first held that, in the context of interpreting the Sixth Directive, an abusive practice can be held to exist where:
– the transactions concerned, notwithstanding formal application of the conditions laid down by the relevant provisions of the Sixth Directive and the national legislation transposing it, result in the accrual of a tax advantage the grant of which would be contrary to the purpose of those provisions;
– it is apparent from a number of objective factors that the essential aim of the transactions concerned is to obtain a tax advantage.
45. The reply to the first question therefore is that the Sixth Directive must be interpreted as meaning that there can be a finding of an abusive practice when the accrual of a tax advantage constitutes the principal aim of the transaction or transactions at issue.
The second question
47. By way of a preliminary point, it must be recalled that a trader’s choice between exempt transactions and taxable transactions may be based on a range of factors, including tax considerations relating to the VAT system. Where the taxable person chooses one of two transactions, the Sixth Directive does not require him to choose the one which involves paying the highest amount of VAT. On the contrary, taxpayers may choose to structure their business so as to limit their tax liability ( Halifax and Others , paragraph 73).
48. Nevertheless, when a transaction involves the supply of a number of services, the question arises whether it should be considered to be a single transaction or as several individual and independent supplies of services requiring separate assessment.
49. That question is of particular importance, for VAT purposes, for applying the rate of tax or the exemption provisions in the Sixth Directive (see Case C-349/96 CPP [1999] ECR I-973, paragraph 27 and Case C-41/04 Levob Verzerkeringen and OV Bank [2005] ECR I-9433, paragraph 18).
50. In that regard it follows from Article 2 of the Sixth Directive that every transaction must normally be regarded as distinct and independent (see CPP , paragraph 29 and Levob Verzerkeringen and OV Bank , paragraph 20).
51. However, in certain circumstances, several formally distinct services, which could be supplied separately and thus give rise, in turn, to taxation or exemption, must be considered to be a single transaction when they are not independent.
52. Such is the case for example, where, in the course of a purely objective analysis, it is found that there is a single supply in cases where one or more elements are to be regarded as constituting the principal service, whilst one or more elements are to be regarded, by contrast, as ancillary services which share the tax treatment of the principal service (see, to that effect, CPP , paragraph 30 and Levob Verzerkeringen and OV Bank , paragraph 21). In particular, a service must be regarded as ancillary to a principal service if it does not constitute for customers an aim in itself, but a means of better enjoying the principal service supplied ( CPP , paragraph 30 and the facts of the dispute in the main proceedings giving rise to that judgment).
53. It can also be held 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 ( Levob Verzekeringen and OV Bank , paragraph 22).
54. It is for the national court to assess if, the contractual structure of the transaction notwithstanding, the evidence put before the court discloses the characteristics of a single transaction.
55. In that context, it may find it necessary to extend its analysis by seeking evidence of indications of the existence of an abusive practice, which is the concept with which the question referred is concerned.
56. The Court, when giving a preliminary ruling, may, where appropriate, provide clarification designed to give the national court guidance in its interpretation ( Halifax and Others , paragraph 77).
61. Since the leasing of vehicles under leasing contracts constitutes a supply of services within the meaning of Articles 6 and 9 of the Sixth Directive (see, inter alia, Case C-451/99 Cura Anlagen  [2002] ECR I-3193, paragraph 19 and Case C-155/01 Cookies World [2003] ECR I-8785, paragraphs 44 and 45), such a transaction is normally subject to VAT, for which the taxable amount is determined in accordance with Article 11A(1) of the Sixth Directive.
62. As regards the second criterion, the national court, in the assessment which it must carry out, may take account of the purely artificial nature of the transactions and the links of a legal, economic and/or personal nature between the operators involved ( Halifax and Others , paragraph 81), those aspects being such as to demonstrate that the accrual of a tax advantage constitutes the principal aim pursued, notwithstanding the possible existence, in addition, of economic objectives arising from, for example, marketing, organisation or guarantee considerations.