Case C‑140/17
Szef Krajowej Administracji Skarbowej
v
Gmina Ryjewo
(Request for a preliminary ruling from the Naczelny Sąd Administracyjny)
(Reference for a preliminary ruling — Value added tax (VAT) — Directive 2006/112/EC — Articles 167, 168 and 184 — Deduction of input tax — Adjustment — Immovable property acquired as capital goods — Initial allocation to an activity which does not confer entitlement to deduct input tax and subsequently also to an activity subject to VAT — Public body — Taxable-person status at the time of the taxable transaction)
Summary — Judgment of the Court (Second Chamber), 25 July 2018
Harmonisation of fiscal legislation — Common system of value added tax — Deduction of input tax — Adjustment of deductions — Immovable property acquired as capital goods which can by their very nature be used both for taxable and for non-taxable activities — Body governed by public law initially using the goods for non-taxable activities — Right to adjustment — Condition — Taxable-person status at the time of the taxable transaction
(Council Directive 2006/112, Arts 167, 168 and 184)
Articles 167, 168 and 184 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax and the principle of the neutrality of value added tax (VAT) must be interpreted as not precluding a body governed by public law from being entitled to a right to adjustment of deductions of value added tax paid on immovable property acquired as capital goods in a situation, such as that at issue in the main proceedings, where, at the time of the acquisition of those goods, first, they could, by their very nature, be used both for taxable activities and for non-taxable activities but were initially used for non-taxable activities, and second, that public body had not expressly stated its intention to use those goods for a taxable activity but had also not excluded the possibility that they might be used for such a purpose, so long as it follows from an assessment of all the factual circumstances, which it is for the referring court to carry out, that the condition laid down by Article 168 of Directive 2006/112, according to which the taxable person must have acted as a taxable person at the time when it made that acquisition, is satisfied.
(see para. 59, operative part)