Szef Krajowej Administracji Skarbowej v Polfarmex Spółka Akcyjna w Kutnie.
Date: 2018-06-13
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It must be recalled, first of all, that the VAT Directive establishes a common system of VAT based on, inter alia, a uniform definition of taxable transactions (judgment of 20 June 2013, Newey, C‑653/11, EU:C:2013:409, paragraph 39 and the case-law cited).
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As regards, fourthly, the question of whether the transaction, by a limited company to a shareholder, transferring ownership of immovable property in return for the buy-back of the shares held by that shareholder, under a mechanism provided for in national legislation, can be considered to have been made for consideration, it should be noted that a supply of goods is made ‘for consideration’, within the meaning of Article 2(1)(a) of the VAT Directive, only if there is a legal relationship between the supplier and the purchaser entailing reciprocal performance, the price received by the supplier constituting the value actually given in return for the asset supplied (judgments of 27 April 1999, Kuwait Petroleum, C‑48/97, EU:C:1999:203, paragraph 26, and of 21 November 2013, Dixons Retail, C‑494/12, EU:C:2013:758, paragraph 32).
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In that regard, although, indeed, the Court has previously ruled that the transfer of immovable property, by a taxable person subject to VAT, to the State Treasury or to a local authority of such a State, as payment for tax arrears, is not subject to VAT on the ground that it does not constitute, having regard to the unilateral nature of the payment of a tax debt, a supply of goods for consideration (judgment of 11 May 2017, Posnania Investment, C‑36/16, EU:C:2017:361, paragraphs 35 and 36), it must be held that, in the present case, there is, between the supplier of the immovable property and the beneficiary thereof, a legal relationship in which Polfarmex transfers ownership of immovable property to its shareholder in exchange for the shares held by the latter. Thus, by a mutual transfer of property rights, each party is involved in the transaction as both the supplier and the purchaser.
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As regards, fifthly, the condition that a taxable person acts as such in the context of the proposed transaction, it must be noted that a taxable person, within the meaning of the second subparagraph of Article 9(1) of the VAT Directive, acts as such, in principle, only if he does so as part of his economic activity (see, to that effect, judgment of 4 October 1995, Armbrecht, C‑291/92, EU:C:1995:304, paragraph 17).
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With regard to the concept of ‘economic activity’, the Court has held that it must be understood as encompassing all activities of producers, traders and persons supplying services. An analysis of those definitions highlights the scope of that concept and its objective nature, in the sense that the activity is considered per se and without regard to its purpose or results. An activity is, as a general rule, categorised as ‘economic’ where it is permanent and is carried out in return for remuneration which is received by the person carrying out the activity (judgment of 20 March 2014, Gmina Wrocław, C‑72/13, not published, EU:C:2014:197, paragraph 16 and the case-law cited).
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It follows that Article 9 of that directive assigns a very wide scope to VAT (see, to that effect, judgment of 29 October 2015, Saudaçor, C‑174/14, EU:C:2015:733, paragraph 31 and the case-law cited).
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The foregoing is still, however, without prejudice to the fact that Article 135(1)(j) of the VAT Directive provides for an exemption from VAT for supplies of buildings, other than those referred to in Article 12(1)(a) of the directive, which refers to the supply of a building or parts thereof, and of the land on which it stands before first occupation. Thus, it must be recalled, in particular, that those provisions, read together, have led the Court to make a distinction between old and new buildings, the sale of an old building not being, as a rule, subject to VAT (see, inter alia, judgments of 12 July 2012, J.J. Komen en Zonen Beheer Heerhugowaard, C‑326/11, EU:C:2012:461, paragraph 21, and of 16 November 2017, Kozuba Premium Selection, C‑308/16, EU:C:2017:869, paragraph 30). Since the question referred does not concern those provisions and the Court has no information in that regard, it is for the referring court, where appropriate, to determine the rules applicable in this respect to the immovable property forming the object of the supply at issue in the main proceedings.
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With regard to the ‘redemption’ of the shares, it is the settled case-law of the Court that the mere acquisition and holding of shares are not to be regarded as an ‘economic activity’ within the meaning of the VAT Directive. Indeed, the mere acquisition of financial holdings in other undertakings does not amount to the exploitation of property for the purpose of obtaining income therefrom on a continuing basis because any dividend yielded by those holdings is merely the result of ownership of the property and is not the consideration for any economic activity within the meaning of that directive (judgment of 26 May 2005, Kretztechnik, C‑465/03, EU:C:2005:320, paragraph 19 and the case-law cited).
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If, therefore, the acquisition of financial holdings in other undertakings does not in itself constitute an economic activity within the meaning of that directive, the same must be true of activities consisting in the sale of such holdings (judgment of 20 June 1996, Wellcome Trust, C‑155/94, EU:C:1996:243, paragraph 33).