19.2.2011

Official Journal of the European Union

C 55/9

(Case C-270/09) (<span class="super">1</span>)

(VAT - Sixth Directive 77/388/EEC - Exemptions - Article 13(B)(b) - Letting of immovable property - Sale of contractual rights convertible into usage rights for timeshare holiday accommodation)

2011/C 55/14

Language of the case: English

Referring court

Parties to the main proceedings

Applicant: MacDonald Resorts Limited

Defendant: The Commissioners for Her Majesty’s Revenue & Customs

Re:

Reference for a preliminary ruling — Court of Session (Scotland) — Interpretation of Articles 9(2)(a) and 13B(b) of Directive 77/388/EEC: Sixth Council Directive of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Concept of exemption for leasing or letting of immovable property — Sale, by a timeshare club, of points giving the right to use holiday accommodation during a given year on a part-time basis

Operative part of the judgment

1.Supplies of services effected by an operator such as the applicant in the main proceedings under a scheme such as the ‘Options Scheme’ at issue in the main proceedings must be classified at the time when the customer participating in such a scheme converts the rights he initially acquired into a service offered by that operator. Where those rights are converted into hotel accommodation or into a right to temporarily use a property, those supplies are supplies of services connected with immovable property within the meaning of Article 9(2)(a) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 2001/115/EC of 20 December 2001, which are performed at the place where the hotel or that property is situated.

2.Under a scheme such as the ‘Options Scheme’ at issue in the main proceedings, when the customer converts the rights he initially acquired into a right to temporarily use a property, the supply of services concerned constitutes the letting of immovable property within the meaning of Article 13B(b) of Sixth Directive 77/388, as amended by Directive 2001/115 (now Article 135(1)(l) of Council Directive 2006/112/EC of 28 December 2006 on the common system of value added tax). However, that provision does not prevent Member States from excluding that supply from exemption.

(<span class="super">1</span>) OJ C 267, 7.11.2009.