Finanzamt B v X-Beteiligungsgesellschaft mbH.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2021:880
• Docket Number: C-324/20
• Date: 28 October 2021
• Celex Number: 62020CJ0324
• Procedure Type: Reference for a preliminary ruling
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (First Chamber)

28 October 2021 (*)

(Reference for a preliminary ruling – Directive 2006/112/EC – Value added tax (VAT) – Supply of services – Articles 63 – Chargeability of VAT – Articles 64(1) – Concept of ‘supplies which give rise to successive payments’ – One-time supply remunerated by means of payment in instalments – Articles 90(1) – Reduction of the taxable amount – Concept of ‘non-payment of the price’)

In Case C‑324/20,

REQUEST for a preliminary ruling under Article 267 TFEU from the Bundesfinanzhof (Federal Finance Court, Germany), made by decision of 7 May 2020, received at the Court on 22 July 2020, in the proceedings

Finanzamt B

v

X-Beteiligungsgesellschaft mbH,

THE COURT (First Chamber),

composed of L. Bay Larsen, Vice-President, acting as President of the First Chamber, J.-C. Bonichot (Rapporteur) and M Safjan, Judge,

Advocate General: M. Szpunar,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– X-Beteiligungsgesellschaft mbH, by O. Pantle, Rechtsanwalt,

– the German Government, by J. Möller and S. Heimerl, acting as Agents,

– the European Commission, by J. Jokubauskaitė and L. Mantl, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 1 July 2021,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 64(1) and Article 90(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).

2 The request has been made in proceedings between Finanzamt B (Tax Office B, Germany) and X-Beteiligungsgesellschaft mbH concerning the chargeability of value added tax (VAT) on a supply of services paid for in several instalments.

Legal context

EU law

3 Recital 24 of Directive 2006/112 reads as follows:

‘The concepts of chargeable event and of the chargeability of VAT should be harmonised if the introduction of the common system of VAT and of any subsequent amendments thereto are to take effect at the same time in all Member States.’

4 Under Article 14(2) of that directive:

‘In addition to the transaction referred to in paragraph 1, each of the following shall be regarded as a supply of goods:

…

(b) the actual handing over of goods pursuant to a contract for the hire of goods for a certain period, or for the sale of goods on deferred terms, which provides that in the normal course of events ownership is to pass at the latest upon payment of the final instalment;

…’

5 Within Title VI of Directive 2006/112 concerning the chargeable event and chargeability of VAT, Chapter 2, under the heading ‘Supply of goods or services’, is comprised of Articles 63 to 67 of the directive.

6 Under Article 63 of the directive:

‘The chargeable event shall occur and VAT shall become chargeable when the goods or the services are supplied.’

7 Article 64 of Directive 2006/112 provides:

‘1. Where it gives rise to successive statements of account or successive payments, the supply of goods, other than that consisting in the hire of goods for a certain period or the sale of goods on deferred terms, as referred to in point (b) of Article 14(2), or the supply of services shall be regarded as being completed on expiry of the periods to which such statements of account or payments relate.

2. Member States may provide that, in certain cases, the continuous supply of goods or services over a period of time is to be regarded as being completed at least at intervals of one year.’

8 Under Article 66 of that directive:

‘By way of derogation from Articles 63, 64 and 65, Member States may provide that VAT is to become chargeable, in respect of certain transactions or certain categories of taxable person at one of the following times:

(a) no later than the time the invoice is issued;

(b) no later than the time the payment is received;

(c) where an invoice is not issued, or is issued late, within a specified period from the date of the chargeable event.’

9 Within Title VII of Directive 2006/112, under the heading ‘Taxable amount’, Article 90 thereof reads as follows:

‘1. In the case of cancellation, refusal or total or partial non-payment, or where the price is reduced after the supply takes place, the taxable amount shall be reduced accordingly under conditions which shall be determined by the Member States.

2. In the case of total or partial non-payment, Member States may derogate from paragraph 1.’

10 Article 193 of that directive provides:

‘VAT shall be payable by any taxable person carrying out a taxable supply of goods or services, except where it is payable by another person in the cases referred to in Articles 194 to 199 and Article 202.’

11 Article 226 of the directive provides:

‘Without prejudice to the particular provisions laid down in this Directive, only the following details are required for VAT purposes on invoices issued pursuant to Articles 220 and 221:

…

(6) the quantity and nature of the goods supplied or the extent and nature of the services rendered;

(7) the date on which the supply of goods or services was made or completed or the date on which the payment on account referred to in points (4) and (5) of Article 220 was made, in so far as that date can be determined and differs from the date of issue of the invoice;

…’

German law

12 Paragraph 13(1)(1) of the Umsatzsteuergesetz (Law on Turnover Tax) of 21 February 2005 (BGB1. 2005 I, p. 386), in the version applicable to the main proceedings (‘the UStG’), provides:

‘Tax shall become chargeable

1. on supplies of goods and other services

(a) in cases where tax is calculated on the basis of the remuneration agreed (Paragraph 16(1), first sentence), upon expiry of the prepayment period in which the supplies of goods or services were made. This shall also apply to part supplies. Supplies are part supplies where it is agreed that certain parts of an economically divisible supply are to be paid for separately. Where the remuneration or part remuneration is received before the supply or part supply has been made, tax shall become chargeable thereon upon expiry of that prepayment period in which the remuneration or part remuneration was received,

(b) in cases where tax is calculated on the basis of the remuneration collected (Paragraph 20), upon expiry of the tax period in which the remuneration was received,

…’

13 Paragraph 17 of the UStG provides:

‘(1) If the taxable amount of a taxable transaction for the purposes of Paragraph 1(1)(1) has changed, the trader who made the supply shall adjust the amount of tax payable accordingly. …

(2) Subparagraph 1 shall apply mutatis mutandis where

1. the remuneration agreed for a taxable supply of goods or other services or a taxable intra-Community acquisition has become unrecoverable. If the remuneration is received retroactively, the amount of the tax and the [input tax] deduction shall be readjusted;

…’

14 Under the first sentence of Paragraph 20 of the UStG, a trader may be allowed to calculate VAT on the basis of the remuneration received rather than on the basis of the remuneration agreed, where, inter alia, his turnover did not exceed a certain threshold in the preceding calendar year.

The facts in the main proceedings and the questions referred for a preliminary ruling

15 In 2012, X supplied mediation services to T-GmbH for the purposes of the latter’s sale of a plot of land to another. It is clear from the fee agreement which X and T entered into on 7 November 2012 that X had already complied with its contractual obligations by that date.

16 As regards the remuneration for the services in question, a fee of EUR 1 000 000 plus VAT was agreed and it was specified that that fee was to be paid in five instalments of EUR 200 000 plus VAT. The instalments were due at yearly intervals and the first instalment was payable on 30 June 2013. At the time of the respective due dates, X issued an invoice for each instalment and paid tax corresponding to the sum received.

17 Following a tax audit, Tax Office B took the view in a decision of 22 December 2016 that the services had been supplied in 2012 and that therefore X should have paid, in respect of that year, VAT on the entire fee.

18 Since the objection lodged against that decision was unsuccessful, X brought an action before the Finanzgericht (Finance Court, Germany), which was largely upheld. In essence, that court found that X had supplied the services at issue in the main proceedings in 2012. However, it took the view that, aside from the first instalment fee, which was received in 2013, the remuneration agreed should be regarded as unrecoverable according to Paragraph 17(2)(1) and the first sentence of Paragraph 17(1) of the UStG. As...