19.12.2009

Official Journal of the European Union

C 312/3

(Case C-29/08)

(Sixth VAT Directive - Articles 2, 4, 13B(d)(5) and 17 - Directive 2006/112/EC - Articles 2, 9, 135(1)(f) and 168 - Disposal by a parent company of a subsidiary and of its holding in a controlled company - Scope of VAT - Exemption - Supplies of services acquired as part of share disposal transactions - Deductibility of VAT)

2009/C 312/04

Language of the case: Swedish

Referring court

Parties to the main proceedings

Applicant: Skatteverket

Defendant: AB SKF

Re:

Reference for a preliminary ruling — Regeringsrätten — Interpretation of Articles 2, 4, 13B(d)(5) and 17 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 (OJ 1977 L 145, p. 1) and Articles 2, 9, 135(1) and 168 of Council Directive 2006/112/EC of 28 November 2006 on the common system for value added tax (OJ 2006 L 347, p. 1) — Sale, by a parent company, of a subsidiary and of its interests in another company with a view to restructuring the group of companies — Deduction of VAT paid on supplies of services acquired by the parent company in the context of those transactions

Operative part of the judgment

1.Articles 2(1) and 4(1) and (2) 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 95/7/EC of 10 April 1995, and Articles 2(1) and 9(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that, where a parent company disposes of all the shares in a wholly-owned subsidiary and of its remaining shareholding in a controlled company which was in the past wholly owned by it, and where it has supplied to those companies services that are subject to value added tax, that disposal is an economic activity coming within the scope of those directives. However, in so far as the disposal of shares is equivalent to the transfer of a totality of assets or part thereof of an undertaking, within the meaning of Article 5(8) of Sixth Directive 77/388, as amended by Directive 95/7, or the first paragraph of Article 19 of Directive 2006/112, and where the Member State concerned has chosen to exercise the option provided for by those provisions, that transaction does not constitute an economic activity subject to value added tax.

2.A disposal of shares such as that at issue in the main proceedings must be exempted from value added tax pursuant to both Article 13B(d)(5) of Sixth Directive 77/388, as amended by Directive 95/7, and Article 135(1)(f) of Directive 2006/112.

3.There is a right to deduct input value added tax paid on services supplied for the purposes of a disposal of shares, under Article 17(1) and (2) of Sixth Directive 77/338, as amended by Directive 95/7, and Article 168 of Directive 2006/112, if there is a direct and immediate link between the costs associated with the input services and the overall economic activities of the taxable person. It is for the referring court to take account of all the circumstances surrounding the transactions at issue in the main proceedings and to determine whether the costs incurred are likely to be incorporated in the price of the shares sold, or if they are among only the cost components of transactions within the scope of the taxable person’s economic activities.

4.The answers to the preceding questions are not affected by the fact that the disposal of shares is carried out by way of several successive transactions.

(1) OJ C 79, 29.3.2008.