Official Journal of the European Union

C 65/6

(Case C-653/11)

2012/C 65/13

Language of the case: English

Referring court

Parties to the main proceedings

Applicant: Her Majesty's Commissioners of Revenue and Customs

Defendant: Paul Newey t/a Ocean Finance

Questions referred

1.In circumstances such as those in the present case, what weight should a national court give to contracts in determining the question of which person made a supply of services for the purposes of VAT? In particular, is the contractual position decisive in determining the VAT supply position?

2.In circumstances such as those in the present case, if the contractual position is not decisive, in what circumstances should a national court depart from the contractual position?

3.In circumstances such as those in the present case, in particular, to what extent is it relevant:

(a)Whether the person who makes the supply as a matter of contract is under the overall control of another person?

(b)Whether the business knowledge, commercial relationship and experience rests with a person other than that which enters into the contract?

(c)Whether all or most of the decisive elements in the supply are performed by a person other than that which enters into the contract?

(d)Whether the commercial risk of financial and reputational loss arising from the supply rests with someone other than that which enters into the contracts?

(e)Whether the person making the supply, as a matter of contract, sub-contracts decisive elements necessary for such supply to a person controlling that first person and such sub-contracting arrangements lack certain commercial features?

4.In circumstances such as those in the present case, should the national court depart from the contractual analysis?

5.If the answer to question 4 is ‘no’, is the tax result of arrangements such as those in this case a tax advantage the grant of which would be contrary to the purpose of the Sixth Directive (1) within the meaning of paragraphs 74 to 86 of the Judgment in Case C-255/02 Halifax Plc and others v CCE?

6.If the answer to question 5 is yes, how should arrangements such as those in the present case be recharacterised?

(1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment

OJ L 145, p. 1