Planzer Luxembourg Sàrl v Bundeszentralamt für Steuern.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2007:397
• Date: 28 June 2007
• Celex Number: 62006CJ0073
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-73/06

Case C-73/06

Planzer Luxembourg Sàrl

v

Bundeszentralamt für Steuern

(Reference for a preliminary ruling from the Finanzgericht Köln)

(Sixth VAT Directive – Article 17(3) and (4) – Refund of VAT – Eighth VAT Directive – Refund of VAT to taxable persons not established inside the country – Articles 3(b) and 9, second paragraph – Annex B – Certificate of status as a taxable person – Legal scope – Thirteenth VAT Directive – Refund of VAT to taxable persons not established in Community territory – Article 1(1) – Concept of ‘business’)

Opinion of Advocate General Trstenjak delivered on 19 April 2007

Judgment of the Court (Fourth Chamber), 28 June 2007

Summary of the Judgment

1. Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Refund of the tax to taxable persons not established in the territory of the country

(Council Directive 79/1072, Arts 3(b), 9, second para., and Annex B)

2. Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Refund of the tax to taxable persons not established in the territory of the Community

(Council Directive 86/560, Art. 1(1))

1. Articles 3(b) and 9, second paragraph, of the Eighth Directive 79/1072 on the harmonisation of the laws of the Member States relating to turnover taxes – Arrangements for the refund of value added tax to taxable persons not established in the territory of the country must be interpreted as meaning that the certificate in accordance with the specimen in Annex B to that directive does in principle allow the presumption that the person concerned is not only subject to VAT in the Member State whose tax authorities issued it, but also that he is established in that Member State in one way or another, whether by having his business there or a fixed establishment from which operations are carried out.

The tax authorities of the Member State in which refund of input VAT is applied for are, in principle, bound in fact and in law by the information contained in that certificate.

Those provisions do not, however, imply that the tax authorities of the refunding Member State are prohibited, where they have doubts as to the economic reality of the establishment whose address is given in that certificate, from verifying that reality by having recourse to the administrative measures made available for that purpose by Community legislation on VAT.

If the information obtained shows that the address given in the certificate of status as a taxable person does not correspond either to the place of business of the person concerned, or to a fixed establishment from which he carries out his operations, the tax authorities of the refunding Member State are entitled to refuse the refund applied for by that person, without prejudice to any possible legal action by the latter.

(see paras 40-41, 49-50, operative part 1)

2. Article 1(1) of the Thirteenth Directive 86/560 on the harmonisation of the laws of the Member States relating to turnover taxes – Arrangements for the refund of value added tax to taxable persons not established in Community territory must be interpreted as meaning that the place of a company’s business is the place where the essential decisions concerning its general management are taken and where the functions of its central administration are exercised.

Determination of a company’s place of business requires a series of factors to be taken into consideration, foremost amongst which are its registered office, the place of its central administration, the place where its directors meet and the place, usually identical, where the general policy of that company is determined. Other factors, such as the place of residence of the main directors, the place where general meetings are held, the place where administrative and accounting documents are kept, and the place where the company’s financial, and particularly banking, transactions mainly take place, may also need to be taken into account.

Thus, a fictitious presence, such as that of a ‘letter box’ or ‘brass plate’ company, cannot be described as a place of business for the purposes of Article 1(1) of the Thirteenth Directive.

(see paras 61-63, operative part 2)

JUDGMENT OF THE COURT (Fourth Chamber)

28 June 2007 *(1)

(Sixth VAT Directive – Article 17(3) and (4) – Refund of VAT – Eighth VAT Directive – Refund of VAT to taxable persons not established inside the country – Articles 3(b) and 9, second paragraph – Annex B – Certificate of status as a taxable person – Legal scope – Thirteenth VAT Directive – Refund of VAT to taxable persons not established in Community territory – Article 1(1) – Concept of ‘business’)

In Case C‑73/06,

REFERENCE for a preliminary ruling under Article 234 EC, by the Finanzgericht Köln (Germany), made by decision of 19 January 2006, received at the Court on 8 February 2006, in the proceedings

Planzer Luxembourg Sàrl

v

Bundeszentralamt für Steuern,

THE COURT (Fourth Chamber),

composed of K. Lenaerts (Rapporteur), President of Chamber, E. Juhász, R. Silva de Lapuerta, J. Malenovský and T. von Danwitz, Judges,

Advocate General: V. Trstenjak,

Registrar: R. Grass,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– Planzer Luxembourg Sàrl, by P. Widdau, Steuerberater,

– the German Government, by M. Lumma and U. Forsthoff, acting as Agents,

– the French Government, by G. de Bergues and J.‑C. Gracia, acting as Agents,

– the Italian Government, by I.M. Braguglia, acting as Agent, assisted by S. Fiorentino, avvocato dello Stato,

– the Luxembourg Government, by S. Schreiner, acting as Agent,

– the Commission of the European Communities, by D. Triantafyllou, acting as Agent,

after hearing the Opinion of the Advocate General at the sitting on 19 April 2007,

gives the following

Judgment

1 The reference for a preliminary ruling concerns the interpretation of Article 3(b) and the second paragraph of Article 9 of, and Annex B to, the Eighth Council Directive 79/1072/EEC of 6 December 1979 on the harmonisation of the laws of the Member States relating to turnover taxes – Arrangements for the refund of value added tax to taxable persons not established in the territory of the country (OJ 1979 L 331, p. 11; ‘the Eighth Directive’), and also the interpretation of Article 1(1) of the Thirteenth Council Directive 86/560/EEC of 17 November 1986 on the harmonisation of the laws of the Member States relating to turnover taxes – Arrangements for the refund of value added tax to taxable persons not established in Community territory (OJ 1986 L 326, p. 40; the Thirteenth Directive’).

2 The reference was made in a dispute between Planzer Luxembourg Sàrl, a company incorporated under Luxembourg law, and the Bundeszentralamt für Steuern (the German tax authority) concerning the latters rejection of applications for refund of value added tax (‘VAT’) paid by the company on fuel supplies in Germany.

Legal context

Community legislation

The Sixth Directive

3 Article 17 of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1; ‘the Sixth Directive’) in the version applicable at the time of the facts, provides in paragraphs (2) and (3):

‘2. In so far as the goods and services are used for the purposes of his taxable transactions, the taxable person shall be entitled to deduct from the tax which he is liable to pay:

(a) [VAT] due or paid in respect of goods or services supplied or to be supplied to him by another taxable person in the territory of the country;

…

3. Member States shall also grant to every taxable person the right to a deduction or refund of the [VAT] referred to in paragraph 2 in so far as the goods and services are used for the purposes of:

(a) transactions relating to the economic activities as referred to in Article 4 (2) carried out in another country, which would be eligible for deduction of tax if they had occurred in the territory of the country;

…’

4 The conditions and detailed rules for the right to refund under Article 17(3) of the Sixth Directive vary according to whether the foreign taxpayer, the recipient of the goods or services used for the purposes of his taxable transactions, is established in another Member State or outside the European Community. The first scenario falls under the Eighth Directive and the second falls under the Thirteenth Directive.

The Eighth Directive

5 Article 1 of the Eighth Directive provides:

‘For the purposes of this Directive, “a taxable person not established in the territory of the country” shall mean a person ... who ... has had in that country neither the seat of his economic activity, nor a fixed establishment from which business transactions are effected, nor, if no such seat or fixed establishment exists, his domicile or normal place of residence, and who ... has supplied no goods or services deemed to have been supplied in that country ...’

6 Article 2 of the same directive provides:

‘Each Member State shall refund to any taxable person...