Prodej pronajatého majetku jako pozbytí obchodního závodu

Sale of leased property as transfer of going concern

The case concerns a situation where a developer built a shopping centre and entered into lease agreements and contracts related to the operation of the centre (in particular, a contract with a manager). Subsequently, the developer sold the shopping centre. The sale included the building, land, fixtures and fittings, lease agreements and related intangibles and website. However, the management agreement and the insurance policy were not part of the sale. The purchaser entered into a new management agreement and insurance policy and continued to operate the centre.

Both parties believed that this was a taxable supply of immovable property. The purchaser claimed input VAT deduction. However, the tax authorities challenged the deduction arguing that it was a transfer of going concern (or its part).

The CJEU confirmed that the transfer of going concern includes situations where not all the tangible and intangible components of the business are transferred, provided that the transferred components are sufficient to enable the business to operate independently. Furthermore, the buyer does not need to be a legal successor of the transferor.

In the light of the above conclusions, some of the earlier opinions of the GFD may appear to be outdated (in particular the conclusions of the Coordination Committee 567/09.09.20).

If you have any questions, please contact the authors of the paper or members of the EY team with whom you usually work.

Author:

Martin Novák