Deduction of VAT on immovable property -Fiscal neutrality and Art 168a

University essay from Lunds universitet/Institutionen för handelsrätt

Abstract: The thesis starts with a description of the background to the change of the rules on deduction of VAT on mixed use immovable property through the insertion of Article 168a in the RVD. The reason according to the Amendment is to promote equity and to prevent unjustified cash-flow advantages granted to taxable persons who use acquire immovable property, deduct full input VAT and then pay it back over the duration of the adjustment period in the form of assessment for private use. The three scenarios are described i.e. allocation entirely to a taxable persons private assets, entirely to their business assets or allocated partly to private assets and partly to business assets. The rules on the sale of immovable property are then discussed, including the fact that it is exempt and how depreciation write-offs work. The purpose of the thesis is to compare the old system for deductions with the new system in order to ascertain whether the new system is more equitable and better prevents the unjustified cash-flow advantages that were possible in the old system. The asset labeling doctrine is investigated through an examination of the case law and it is found that Lennartz principle is developed and nuanced through a number of cases with the conclusion that under the asset labeling doctrine a taxable person may choose to allocate entirely to his business assets, his private assets or a mix of the two with different consequences for tax purposes. In terms of equity, the problems with this system are that it enables a taxable person to allocate an asset entirely to his business assets and then deduct input VAT in full with a staggered imposition of the payments. Furthermore there is a risk of the 10-year interest free loan and untaxed end use. The pro rata deduction system is then introduced by way of the Wollny and Puffer cases which show the intention that the full costs for private use can correspond to the amount deducted for the period of adjustment in order to best avoid untaxed end use. Other elements of the pro rata system are then treated for example the concepts of the temporary exemption equalisation, how the initial deduction is to be calculated etc. An evaluation of the unjustified cash-flow advantages and untaxed end use possibilities is then performed, and it is found that 168a RVD militates these schemes, apart from in the case of deferred private use as the adjustment period still does not correspond to the economic lifetime of an immovable property. Finally, it is concluded that the insertion of Article 168a RVD and its consequences, means the initial deduction of input VAT with regards to immovable property is more equitable and better equipped to prevent unjustified cash-flow advantages than the asset labelling doctrine.

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