X v Skatteverket.

• Jurisdiction: European Union
• Date: 06 May 2010
• Court: Court of Justice (European Union)

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 6 May 2010 ¹(1)

Case C‑84/09

X

v

Skatteverket

(Reference for a preliminary ruling from the Regeringsrätten (Sweden))

(Value added tax – Directive 2006/112/EC – Intra-Community acquisition of a new sailing boat – Use of goods in the State of origin or another Member State before being transported to the Member State of destination – Period of time for commencement of transport to the State of destination – Material time for determination as a new means of transport)

I – Introduction

1. By this reference, the Regeringsrätten (Supreme Administrative Court), Sweden, is seeking an interpretation by the Court of Justice of the rules on intra-Community acquisitions in Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (VAT) (2) (‘Directive 2006/112’).

2. The specific issue concerns the tax treatment of the acquisition of a new sailing boat of which the purchaser X intends to take possession in the United Kingdom, to use there or in another Member State for three to five months and then to transport to his place of residence in Sweden. X takes the view that that constitutes a supply within the territory of a Member State, taxable in the State of origin. The Swedish tax authority, however – supported in the proceedings before the Court of Justice by the German Government and the Commission – considers that (despite the interval in time) it amounts to an intra-Community acquisition in Sweden.

II – Legal framework

A – European Union law

3. Recital 11 in the preamble to Directive 2006/112 reads:

‘It is also appropriate that, during that transitional period, intra-Community acquisitions of a certain value, made by exempt persons or by non-taxable legal persons, certain intra-Community distance selling and the supply of new means of transport to individuals or to exempt or non-taxable bodies should also be taxed in the Member State of destination, in accordance with the rates and conditions set by that Member State, in so far as such transactions would, in the absence of special provisions, be likely to cause significant distortion of competition between Member States.’

4. The relevant passages of Article 2(1) of Directive 2006/112 read as follows:

‘The following transactions shall be subject to VAT:

(a) the supply of goods for consideration within the territory of a Member State by a taxable person acting as such;

(b) the intra-Community acquisition of goods for consideration within the territory of a Member State by:

…

(ii) in the case of new means of transport, a taxable person, or a non-taxable legal person, whose other acquisitions are not subject to VAT pursuant to Article 3(1), or any other non-taxable person; …’

5. Article 2(2) of Directive 2006/112 also provides:

‘(a) For the purposes of point (ii) of paragraph 1(b), the following shall be regarded as “means of transport”, where they are intended for the transport of persons or goods:

…

(ii) vessels exceeding 7.5 metres in length, with the exception of vessels used for navigation on the high seas and carrying passengers for reward, and of vessels used for the purposes of commercial, industrial or fishing activities, or for rescue or assistance at sea, or for inshore fishing;

…

(b) These means of transport shall be regarded as “new” in the cases:

…

(ii) of vessels, where the supply takes place within three months of the date of first entry into service or where the vessel has sailed for no more than 100 hours;

…

(c) Member States shall lay down the conditions under which the facts referred to in point (b) may be regarded as established.’

6. Article 14(1) of Directive 2006/112 defines the term ‘supply of goods’ as follows:

‘1. “Supply of goods” shall mean the transfer of the right to dispose of tangible property as owner.’

7. Under Article 20(1) of Directive 2006/112, ‘[i]ntra-Community acquisition of goods shall mean the acquisition of the right to dispose as owner of movable tangible property dispatched or transported to the person acquiring the goods, by or on behalf of the vendor or the person acquiring the goods, in a Member State other than that in which dispatch or transport of the goods began’.

8. Under Article 40 of Directive 2006/112, the place of an intra-Community acquisition of goods is deemed to be the place where dispatch or transport of the goods to the person acquiring them ends.

9. Article 68 of Directive 2006/112 provides that the time of occurrence of the chargeable event in the case of an intra-Community acquisition of goods is when the intra-Community acquisition of goods is made. Under Article 68, the acquisition is regarded as being made when the supply of similar goods is regarded as being effected within the territory of the relevant Member State.

10. Article 138 of Directive 2006/112 provides for exemption of intra-Community supplies as follows:

‘1. Member States shall exempt the supply of goods dispatched or transported to a destination outside their respective territory but within the Community, by or on behalf of the vendor or the person acquiring the goods, for another taxable person, or for a non-taxable legal person acting as such in a Member State other than that in which dispatch or transport of the goods began.

2. In addition to the supply of goods referred to in paragraph 1, Member States shall exempt the following transactions:

(a) the supply of new means of transport, dispatched or transported to the customer at a destination outside their respective territory but within the Community, by or on behalf of the vendor or the customer, for taxable persons, or non-taxable legal persons, whose intra-Community acquisitions of goods are not subject to VAT pursuant to Article 3(1), or for any other non-taxable person; …’

B – Swedish law

11. Under Chapter 1, Paragraph 1, of the Mervärdesskattelagen (Law on value added tax) (1994:200) (‘the ML’), VAT is to be paid to the State on, inter alia, sales within the State of taxable goods as part of a business activity and for taxable intra-Community acquisitions of goods which are movable property. Under Chapter 2a, Paragraph 3, of the ML, goods are to be regarded as acquired by means of an intra-Community acquisition if the acquisition concerns a new means of transport such as those mentioned in Chapter 1, Paragraph 13a.

12. Chapter 3, Paragraph 30a, of the ML provides that sales of new means of transport which are transported by or on behalf of the vendor or the purchaser from Sweden to another Member State are to be exempt from tax, even if the purchaser is not identified for VAT purposes.

13. Under Chapter 2a, Paragraph 2, of the ML, ‘intra-Community acquisition’ means that someone acquires goods for consideration in a case where the goods are transported to the person acquiring the goods in Sweden from another Member State by or on behalf of the person acquiring the goods or the vendor.

14. Under Chapter 1, Paragraph 13a, of the ML, new means of transport is to be understood as including vessels – with certain exceptions which are not relevant in the present case – exceeding 7.5 metres in length, provided that they are sold within three months of the date on which they first entered into service or have sailed for no more than 100 hours before the sale.

III – Facts and questions referred for a preliminary ruling

15. The private individual X, who is resident in Sweden, intends to acquire in the United Kingdom a sailing boat exceeding 7.5 metres in length for his private use. After delivery of the sailing boat, X intends to use it for recreational purposes in the State of origin for three to five months and thereby to sail the boat for more than 100 hours or to transport it out of the State of origin immediately after delivery for similar use in a Member State other than Sweden. In both cases, following the planned use, the boat is to be sailed to Sweden, the final destination.

16. In order to clarify the tax consequences of the acquisition, X applied to the Skatterättsnämnd (Revenue Law Commission) for a preliminary decision and asked whether the acquisition would be taxed in Sweden in either of the two cases.

17. The Skatterättsnämnd found that in both cases there was a taxable intra-Community acquisition of a new means of transport, resulting in X being liable to tax in Sweden. X is now appealing against that preliminary decision to the Regeringsrätten. He takes the view that the supply of the boat should be taxed as a supply within the territory of the United Kingdom. In the light of the foregoing, the Regeringsrätten has submitted the following questions to the Court of Justice for a preliminary ruling, pursuant to its order of 16 February 2009:

‘(1) Are Articles 138 and 20 of Council Directive 2006/112/EC on the common system of value added tax to be interpreted as meaning that the transport out of the territory of the State of origin must begin within a certain period of time for the sale to be exempt from tax and for there to be an intra-Community acquisition?

(2) Similarly, are those articles to be interpreted as meaning that the transport must end in the country of destination within a certain period of time for the sale to be exempt from tax and for there to be an intra-Community acquisition?

(3) Would the answers to Questions 1 and 2 be affected if that which is acquired is a new means of transport and the person acquiring the goods is an individual who intends ultimately to use the means of transport in a particular Member State?

(4) In connection with an intra-Community acquisition, at which time must the assessment be made as to whether a means of transport is new in accordance with Article 2(2)(b) of Council Directive 2006/112/EC on the common system of value added tax?’

18. X, the Skatteverket (the local tax board), the German Government and the European...