Moms vedr. udlejning af fast ejendom: Momsloven vedr. udlejning af fast ejendom og efterfølgende salg

Abstrakt

The Council Directive 2006/112/EC of 28 November 2006 on the harmonization of the laws of the Member States relating to turnover taxes - Common system of value added tax - is the basis for the Danish VAT law. EU law has precedence over national Danish law, and the decisions made by de EU-court, determines the correct interpretation of the VAT Directive.
The objective of this thesis, is to analyze and determine if Danish practices on applying VAT on delivery of new buildings and building land, after the letting of immovable property, is in accordance with the EU-courts interpretation of the VAT Directive.
The main rule regarding VAT on the supply of immovable property is a part of the transactions that are exempt from VAT in the Danish VAT law §13, subsection 1, number 9. This is an implementation of the VAT Directive article 135, letter j and k.
The exception to the main rule is the implementation of the VAT Directive article 12 in the Danish VAT law §13, subsection 1, number 9, letter a and b, that does not exempt the supply of new buildings or parts of a building and of the land on which the building stands and the supply of building land.
The leasing or letting of immovable property is also exempt from VAT in the Danish VAT law §13, subsection 1, number 8 and in the VAT Directive article 135, letter l.
The Danish VAT law §13, subsection 2, states that the supply of goods used solely for an activity exempted under §13, shall be exempt from VAT. This is equal to the VAT Directive article 136.
To determine if the sale of a new building or building land, once it has been rented out in accordance with the Danish VAT §13, subsection 1, number 8, is exempt from VAT in accordance with §13, subsection 2, or it is not exempt from VAT in accordance with §13, subsection 1, number 9, letter a and b, the specifics regarding the transaction is taken into consideration.
The conclusion is, that the Danish practices on VAT exemption on delivery of new buildings and building land, after the letting of immovable property, seem to be more restrictive than the EU-courts interpretation of the VAT Directive, and in some cases, deprives the Danish VAT §13, subsection 2 its eligibility.