in case a lease on a building requires either the transfer of property in favor of user at the maturity of the contract, or making available to users of the powerful attributes of ownership over the property, handing the respective user him the majority of the benefits and risks of ownership over the property, and the updated value of instalments being practically identical to the market value of the asset, the operation that resulted from such a contract must be assimilated to an operation of purchasing a capital good.”
2) Article 90 paragraph (1) of Directive 2006/112 must be interpreted as it does not allow a taxpayer to reduce its tax base when the latter virtually earned all payments for the service that he provided, or when, without the termination or cancellation of the contract, the other party to the contract does not owe to the price agreed.
3) The principle of fiscal neutrality must be interpreted as not precluding, on the one hand, a provision of leasing referring to real estate and, on the other hand, the transfer of such immovable property to a third party (versus the lease agreement) to be subject to distinct taxation for purposes of VAT, to the extent to which these operations can not be regarded as forming a single supply, aspect to be appreciated by the referring court.”
Internationally, in Case C-209/2014, the Supreme Judge of Slovenia wonders about reducing the tax base in case of cancellation of a lease agreement, formulating the following questions: “In the light of circumstances such as those in the main proceedings, Article 90 (1) of Directive 2006/112 / EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that restitution in possession of the financier, due to non-payment of the obligations of the user, of the property subject of the leasing (real estate), in order to sell it later and compensation under the lease, although it takes place after reaching the term of all lease payments, represent a situation of “annulment, refuse […] or non-payment totally [of] or partially “after delivery, for which the tax base is reduced accordingly? Article 2 (1), Article 14 and Article 24 (1) of Directive 2006/112 / EC of 28 November 2006 on the common system of value added tax must be interpreted in the sense that the sum of the buying operation, which is the largest of the obligations arising from the lease agreement and that the user pays to the financier, so that because of non-payment of the obligations, the financier has regained possession over the leased, has sold it to a third party and paid the user the difference in addition to of the purchase price, resulted from the sale, from which, in the final financial situation, decreased the amount of the purchase option, must be considered as consideration of performance of the contract and delivery of goods and, as such, to be applied VAT, as the counterparty for rental service or use of the real estate (which, as such, is subject to VAT under the law or at the choice of the taxpayer) or as compensation for termination of the contract, paid to cover the damage caused by failure of the obligations of the user, which have no direct connection with any service provided and which, as such, are not subject to VAT? If as a response to the second question, it is considered that it is the consideration for the supply of goods and for performance of the contract, the principle of neutrality of VAT precludes that the financier to pay twice VAT on outputs, namely the first time, at the conclusion of financial lease agreements (including the sum for purchase, which represented the largest share of the contract value) and, the second time, because of non-payment of the obligations of the user at the subsequent sale of the building to a third party, having in mind that through the final financial situation, the obligation to pay the VAT resulting from the second delivery was set in the user behalf? ”
European Court of Justice issued a decision on the preliminary ruling in Case C-209/2014, establishing that it is the duty of the Supreme Court to conduct any legal clarifications necessary to resolve the dispute in the first instance, reason for which the supreme referring court in Slovenia upheld on 07.01.2016 the extraordinary appeal and sent the case for retrial.