Case C‑186/15
Kreissparkasse Wiedenbrück
v
Finanzamt Wiedenbrück
(Request for a preliminary ruling from the Finanzgericht Münster)
(Reference for a preliminary ruling — Taxation — Value added tax — Directive 2006/112/EC — Deduction of input tax — Article 173(1) — Goods or services used to carry out both taxable transactions and exempt transactions (‘mixed use goods and services’) — Determining the amount of the value added tax deduction — Deductible proportion — Article 174 — Deductible proportion calculated by applying an allocation key according to turnover — Article 173(2) — Derogation — Article 175 — Rounding-up rule for the deductible proportion — Articles 184 and 185 — Adjustment of deductions)
Summary — Judgment of the Court (Eighth Chamber), 16 June 2016
1. Harmonisation of fiscal legislation — Common system of value added tax — Deduction of input tax — Goods and services used both for transactions in respect of which VAT is deductible and for transactions in respect of which it is not deductible — Proportional deduction — Calculation — Rounding-up of the percentage obtained to the next whole number —No mandatory application of that rounding-up rule where the deductible proportion is calculated in accordance with one of the derogating methods set out in Article 173(2) of Directive 2006/112 (Council Directive 2006/112, Art. 175(1))
2. Harmonisation of fiscal legislation — Common system of value added tax — Deduction of input tax — Goods and services used both for transactions in respect of which VAT is deductible and for transactions in respect of which it is not deductible — Proportional deduction — Calculation — Rounding-up of the percentage obtained to the next whole number — Adjustment of the initial deduction — Mandatory application of that rounding-up rule where the deductible proportion is calculated in accordance with one of the derogating methods set out in Article 173(2) of Directive 2006/112 or Article 17(5), third subparagraph of Directive 77/388 — Condition
(Council Directive 2006/112, Arts 184 to 186)
1. Article 175(1) of Directive 2006/112 on the common system of value added tax must be interpreted as meaning that the Member States are not required to apply the rounding-up rule laid down in that provision where the deductible proportion is calculated in accordance with one of the derogating methods set out in Article 173(2) of that directive.
(see para. 42, operative part 1)
2. Article 184 et seq. of Directive 2006/112 must be interpreted as meaning that the Member States are required to apply the rounding-up rule laid down in Article 175(1) of that directive in the event of adjustment where, under their national legislation, the deductible proportion has been calculated in accordance with one of the methods set out in Article 173(2) of that directive or in the third subparagraph of Article 17(5) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, only where that rule was applied to determine the initial amount of the deduction or where the factor whose change makes the adjustment necessary consists of a new application of the calculation method set out in the second subparagraph of Article 173(1) of that directive or of the rounding-up rule.
A reading of Articles 184 and 185(1) of Directive 2006/112 in conjunction with on another reveals that, on the one hand, where an adjustment proves to be necessary because of the change in one of the factors used to determine the amount to be deducted, the amount of that adjustment must be calculated in such a way that the final amount to be deducted corresponds to that to which the taxable person would have been entitled if that change had been initially taken into account. On the other hand, the calculation of that amount entails taking into account the same factors as those initially taken into consideration, with the exception of the factor that has been changed.
(see paras 47, 50, 51, operative part 2)