Einde inhoudsopgave
Aftrek van BTW als (belaste) omzet ontbreekt (FM nr. 134) 2010/7.9
7.9 Deduction and the use of goods and services for the transfer of a business as a going concern or an independent part thereof
dr. S.T.M. Beelen, datum 01-03-2010
- Datum
01-03-2010
- Auteur
dr. S.T.M. Beelen
- JCDI
JCDI:ADS300774:1
- Vakgebied(en)
Omzetbelasting / Algemeen
Omzetbelasting / Aftrek en teruggaaf
Europees belastingrecht / Richtlijnen EU
Voetnoten
Voetnoten
See Notice 700/6 Transfer of business as going concern, part 2.6.2. and Notice 706 Partial Exemption, part 12.6, in which the following is stated: ‘12.6 What if I am the transferor? Following the European Court of Justice decision in Abbey National Plc (C-408/98), we now accept that, from 1 August 2001, the input tax on expenses that relate wholly to the transfer (for example legal fees) should be treated as an overhead of that part of the business being transferred. Where that part of the business makes: – only taxable supplies, the input tax is fully recoverable; – only exempt supplies, the input tax is wholly non-recoverable; and – both taxable and exempt supplies, the input tax is residual and recoverable in accordance with the partial exemption method in place. Prior to the Abbey National Plc decision, our policy was that input tax incurred on expenses which related to the transfer of assets were considered to be residual tax, and the value of input tax recoverable was calculated in accordance with the partial exemption method in place. If your partial exemption method fails to achieve a fair and reasonable result, we may, exceptionally, be prepared to approve an alternative method, which has retrospective effect. However, we will seek to ensure that any such method provides for a fair and reasonable recovery of input tax. 12.7 What if I am the transferee? The input tax on costs that relate wholly to the acquisition of assets acquired for your business, as a result of a transfer of a going concern, will be recoverable to the extent to which they will be used in making taxable supplies. Therefore, where they are be used in making: – only taxable supplies, the input tax is fully recoverable; – only exempt supplies, the input tax is wholly non-recoverable; and – both taxable and exempt supplies, the input tax is residual and recoverable in accordance with the partial exemption method in place. Please note this applies only to acquisitions of businesses by way of a transfer of a going concern. Any input tax on expenses related to any other form of acquisition, such as the acquisition of shares in a business, should be treated as residual input tax, and recoverable in accordance with the partial exemption method in place.’
A group of companies which qualifies as a VAT group decides to sell part of its operations. The deal is made by transferring assets and liabilities (qualifying as a totality of assets).
Netherlands
The costs attributable to the transfer or the business qualify as ‘general costs’ which have, as such, a link with the business as a whole, meaning that the VAT on these costs is deductible according to the pro rata applicable to (this part of) the business.
United Kingdom
The transfer of (an independent part of) the business is outside the scope of VAT. The costs attributable to the transfer of the business qualify as ‘general costs’ which are linked with the part of the business transferred. The VAT on these costs is deductible according to the pro rata applicable to the part of the business transferred.1
Germany
In line with ECJ 22 February 2001, C-408/98 (Abbey National I), the costs attributable to the transfer of the business qualify as ‘general costs’ which have, as such, a link with the business as a whole, meaning that the VAT on these costs is deductible according to the pro rata applicable to (this part of) the business.
France
The costs are regarded as overheads and input VAT is deductible according to the VAT recovery position of the transfer and/or, where possible, to the part of the business transferred, in line with the Abbey National I-decision.