13.12.2021

Official Journal of the European Union

C 502/7

(Joined Cases C-45/20 and C-46/20) (*)

(Reference for a preliminary ruling - Value added tax (VAT) - Directive 2006/112/EC - Article 167, Article 168(a), Article 250 and Article 252 - Deduction of input tax - Immovable property - An office room - Photovoltaic system - Allocation decision giving rise to a right of deduction - Communication of the allocation decision - Limitation period for exercising a right to deduct - Presumption of allocation to the private assets of the taxable person where the allocation decision is not communicated - Principle of neutrality - Principle of legal certainty - Principles of equivalence and proportionality)

(2021/C 502/10)

Language of the case: German

Referring court

Parties to the main proceedings

Applicants: E (C-45/20), Z (C-46/20)

Defendants: Finanzamt N (C-45/20), Finanzamt G (C-46/20)

Operative part of the judgment

Article 168(a) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, as amended by Council Directive 2009/162/EU of 22 December 2009, read in conjunction with Article 167 of Council Directive 2006/112/EC, must be interpreted as not precluding national provisions interpreted by a national court in such a manner that where a taxable person has the right to decide to allocate an asset to his or her business assets and where, at the latest upon expiry of the statutory period for submitting the annual turnover-tax return, the competent national tax authority has not been put in a position to establish such an allocation of that asset by means of an express decision or sufficient evidence, that authority may refuse the right to deduct value added tax in respect of that asset on the ground that it has been allocated to the taxable person’s private assets, unless the specific legal arrangements under which that option may be exercised show that it does not comply with the principle of proportionality.

(*) Language of the case: German.