Promialp case: is the debate over?

In what has rightly been described as ‘an earthquake to be built’, the Conseil d’Etat has validated the position last expressed by administrative doctrine, consisting of restricting the margin tax regime to cases where the asset acquired and the asset resold retain the same legal qualification. Is this decision, handed down ‘in the light’ of Article 392 of the VAT Directive, likely to bring the debate to a definitive close?

The Conseil d’Etat has taken a rather unexpected decision¹ in what has gradually become a major dispute for developers and property traders.

The tax authorities questioned the application of VAT only on the margin earned by these property professionals, since the property they were reselling was not strictly identical to the property they had acquired, even though this acquisition did not give rise to a right to deduction. The authorities then claim VAT on the full sale price, thereby wiping out all or part of the profit made by the professional².

In doing so, it enjoyed the unconditional support of its minister, who, when besieged with questions from members of parliament, argued that the resale of building plots resulting from the division of a single plot should be taxed on the full price, even if the initial acquisition did not give rise to a right to deduct.

Following a number of first instance rulings to the contrary, the Minister finally relaxed his position, requiring only that the legal classification of the property acquired⁴ and the property resold⁴ be identical. Most of these judgments, all of which were favourable to the taxpayers, were not subject to appeal and it was only in a few cases (undoubtedly those which the Administration considered to be the best candidates for reversal) that the appeal judge was called upon to rule⁵. The Promialp case was one of these, even though the Administration only lodged a cross-appeal⁶, and the Conseil d’Etat’s decision, while overturning the position that had hitherto been unanimously adopted by the judges at first instance, may not, in our view, bring the debate to a definitive close.

2 – Article 268 of the CGI provides that ‘With regard to the supply of building land, or a transaction mentioned in 2°) of 5 of Article 261 (i.e. the supply of buildings completed more than five years ago) for which the option provided for in 5°) bis of Article 260 has been made, if the acquisition by the transferor did not give rise to a right to deduct value added tax, the taxable amount is made up of the difference between:

1° On the one hand, the price expressed and the charges added to it;

2° On the other hand, as the case may be: a) either the sums that the transferor has paid, on whatever basis, for the acquisition of the land or building […] ’. Thus, the text seems to set only one condition for taxation on the margin alone: the fact that the acquisition did not give rise to a right to deduction, without any distinction being made as to the qualification that led to a lack of deduction at the time of acquisition.

3 – It is this approach, admittedly a very literal one, that has been adopted until now by the lower courts in rejecting the Administration’s claims. The latter maintained that its doctrine does not add to the law, at the cost of an interpretation that has been described as ‘distributive’.

In her conclusions at the foot of the Promialp ruling, Karin Ciavaldini, the public rapporteur, agreed with this interpretation: the law distinguishes between two concepts when determining the scope of application of VAT on margin: on the one hand, building land, and on the other, buildings that have been completed for more than 5 years. In support of this view, it notes that the reference to ‘the land or building’ in a) of 2° of Article 268 refers respectively to ‘building land’ and to the ‘operation mentioned in 2°) of 5 of Article 261’. As may have been pointed out in these columns⁷ , this distributive interpretation would be indisputable if the legislature had taken care to use the adverb ‘respectively’. Is this an oversight?

4 – The diversions via parliamentary works is prohibited in the presence of a clear text⁸. M. Raymond Odent states in his course in administrative litigation that a text is clear ‘when, taking into account the rules of grammar, semantics and syntax, its meaning cannot lend itself to any discussion’⁹. The text of Article 268 of the CGI seems to us to be literally clear, although a second, distributive approach may be defended. Let us admit that the diversions via parliamentary proceedings is justified. Does the legislator’s intention support the approach adopted by the Conseil d’État?

No mention of a possible restriction on the identity of the property acquired and resold appears clearly in the work leading up to the adoption of Law no. 2010-237 of 9 March 2010 amending the Finance Act for 2010. As Olivier Guiardx¹⁰ rightly pointed out, the report by Philippe Marini¹¹ ‘justifies the use of VAT on the margin so that developers are only taxed on the added value created by their developments. It is therefore clear that, in the legislature’s mind, the VAT margin scheme is applicable even when the land undergoes changes’.

In support of the distributive interpretation of Article 268 of the CGI, it should be noted that the opinion submitted by Mr. Olivier Carré to the Speaker of the French National Assembly on 17 November 2009 states that the provisions introducing Article 268 of the General Tax Code can also be explained by the need to adjust: ‘the system for property dealers: IX provides for the application of a margin-based VAT system, in accordance with the provisions of the Directive and consequently limited to the supply of building land or land or buildings for which an option has been exercised where the acquisition of the property sold did not give rise to a right to deduction. </In fact, if the text ‘adapts’ – among other things – the property dealer regime, then it could be argued that this text excludes transactions resulting in the transformation of the property acquired…

It should be noted, however, that Olivier Carré, who drafted the opinion to the National Assembly that led to the adoption of Article 268 of the CGI and is therefore well placed to appreciate the legislator’s intention, was among the first to sound the alarm, via a written question to the Government, the Budget Minister about the fact that certain audit departments ‘require conditions not provided for in this text in order to allow resale prices to be taxed at the margin under Article 268 of the General Tax Code’¹².

In the final analysis, it seems to us that the parliamentary proceedings do not shed any decisive light on, and at the very least do not clearly support, the view that the legislature intended to reserve the margin tax regime for situations in which the building land resold had to qualify as building land at the time it was acquired.

5 – Article 268 of the General Tax Code transposes into domestic law the provisions of Article 392 of the VAT Directive 2006/112/EC of 28 November 2006. It must therefore be interpreted in the light of those provisions¹³, according to which ‘Member States may provide that, in the case of supplies of buildings and building land purchased with a view to resale by a taxable person who did not have a right of deduction at the time of acquisition, the taxable amount shall be the difference between the sale price and the purchase price’.

What is striking, firstly, is that this transposition into domestic law is incomplete: the directive allows the margin scheme to be applied only to ‘purchases with a view to resale’, whereas Article 268 of the General Tax Code allows it to be applied to disposals of land and fixed assets. Secondly, it should be noted that the wording of Article 392 of the Directive does not expressly provide that the property must not be transformed between purchase and resale: there is no restriction on property purchased with a view to resale ‘as is’. This is not a translation issue, since the other official versions of Article 392 do not contain an explicit identity requirement either.

6 – Unfortunately, the available travaux préparatoires are of little help¹⁴. They do, however, provide some clarification as to the reasons for subjecting building land to VAT: ‘from the point of view of VAT as a tax which applies to all stages of production and distribution and which relates to “consumption”, land seems wholly unsuitable as a basis for VAT, since it is neither produced nor consumed. However, while land as such cannot be ‘produced’, it can be the subject of economic acts of production that add a certain value to it: a developed building plot will be worth more than an undeveloped plot, and economic activity is the source of the land’s added value. The sale price will not distinguish between the price of the land and the price of the labour incorporated in it’.

7 – However, the fact that Article 392 of the Directive refers to purchases with a view to resale could rule out any transformation of the property between purchase and resale. To our knowledge, the CJEU has never ruled on this condition of identity of classification, which would be implicit. However, it was on this basis that the Conseil d’Etat ruled that the margin tax rules ‘apply to sales of building land that has been acquired with a view to resale and do not apply therefore to a sale of building land which, when acquired, had the character of built-up land, where the building on which it was built has been demolished by the purchaser-reseller. ’

8 – To hold, on the grounds that the Directive restricts the margin scheme to ‘purchases with a view to resale’, that it cannot apply where ‘the physical characteristics and classification of the goods in question were changed between their acquisition and sale’, seems to us to be somewhat bold.

The reference in Promialp to the ‘physical characteristics’ of the property in question brings us back to the requirement of physical identity, which the Minister has nonetheless abandoned. This requirement would lead to a drastic reduction in cases of taxation at the margin, by effectively excluding developers, in contradiction with the intention of the legislator. The parliamentary works clearly state that the purpose of the margin tax system is to tax the added value associated with developments. However, the French tax authorities consider that the developments carried out by a developer are ‘constructions’ ¹⁵. Worse still, under Community law, development work ‘is intended to change the legal status or physical characteristics of the property’¹⁶.

In these circumstances, if the purpose of the margin tax scheme is to tax the added value associated with the improvements, as the parliamentary works point out, is it not intended to apply in situations where the legal status and physical characteristics of the improved property are changed?

9 – The fact that the Conseil d’Etat literally refers to the modification of the ‘physical characteristics’ of the property acquired and resold raises questions about the scope of its decision. It seems to us that this decision, which will be cited in the Tables of the Recueil Lebon, should not necessarily be extended beyond the case submitted for cassation, i.e. the resale of a building plot resulting from the demolition of an existing building. In other words, the physical characteristics of the property can be changed without altering its ‘classification’. Failing this, the Vogel¹⁷ response would now appear to be very valuable, in that it clearly admits the application of the margin regime in the event of the division of a building plot with a view to its resale in several lots, despite the modification of the characteristics of a property whose qualification (building plot) has remained unchanged.

10 – The Conseil d’Etat clearly ruled that ‘the derogatory rules for calculating value added tax that they provide for apply to sales of building land that has been acquired with a view to resale and therefore do not apply to a sale of building land which, at the time of acquisition, had the character of built-up land, when the building on which it was built was demolished by the purchaser-reseller. </Thus, the condition and, in particular, the habitable or uninhabitable nature of the building that was demolished (the judgment does, however, mention a ‘residential building’) would not have affected the analysis of the judges of the Palais-Royal.

11 – As a result, faint-hearted developers should, as the Administration¹⁸ invites them to do, proceed with a division of the land before any acquisition, ‘making it possible to distinguish between the part of the right-of-way that is free of buildings that can be used as such, the transfer of which will be taxed as building land, and the part that is already built on and can be used as such, the tax classification of which will depend on its specific characteristics’. Better still, in a situation similar to that in the Promialp case, the developer could try to transfer responsibility for the demolition to the seller, even if it meant indirectly assuming the cost when the price was determined. Unfortunately, this will rarely be possible when the seller is a private individual caught up in his own tax constraints, particularly as regards the exemption from capital gains tax on the sale of what was previously his principal residence¹⁹.

12 – However, the fate of transactions resulting in demolition occurring between the purchase and resale of the property is perhaps not definitively settled. The question of the assessment of the condition of identity of ‘qualification’ of the property acquired and resold remains unresolved and we will carefully observe the ruling to be handed down by the Administrative Court of Lyon to which the case has been referred.

If this identity of classification is to be assessed in the light of specific VAT rules, it could be argued before the Lyon Administrative Court of Appeal that a plot of land encumbered by buildings intended for demolition is… a building plot. After all, Article 257, I, 1 and 2 of the General Tax Code defines it objectively as land on which ‘buildings may be authorised under a local town planning scheme, another local town planning document, a local map or the provisions of Article L. 111-3 of the Town Planning Code’.

The administrative doctrine considers that ‘it is clear from both the directive and the national legislation that the concepts of building land and built property are mutually exclusive. Thus, only land that does not already contain ‘buildings’²⁰ can constitute building land.

This definition is not fully satisfactory: it does not restrict the qualification of built land to the mere right of way or immediate outbuildings of the ‘buildings’ and does not distinguish between a building in a condition to be used and one unfit for any use. For the CJEU, if building land is bare or developed land defined as such by the Member States, this definition must take account of the objective of the Directive, which is to exempt from VAT only supplies of undeveloped land that is not intended to support a building²¹.

13 – On the other hand, the Court of Justice has held that the sale of land on which an old building still stands and which must be demolished so that a new building can be erected on its site, and whose demolition for that purpose, undertaken by the vendor, had already begun before the sale, constituted building land. Such supply and demolition operations form a single transaction for VAT purposes, the overall purpose of which is not the supply of the existing building and the adjoining land, but that of a plot of undeveloped land, regardless of the progress of the demolition work on the old building at the time of the actual supply of the land²².

More recently, in the context of the sale of a plot of land containing a functional warehouse that was to be partially demolished, the CJEU held that a plot of land containing a building that could be used at the date of the sale was not land under construction, even though the intention of the parties was that the building should be partially demolished to make way for a new building²³. It should be noted, however, that in this case none of the parties to the deed of sale (not even the purchaser) was responsible for the demolition and that there was little objective evidence to support the parties’ intention: in these circumstances, it was difficult to argue that the sale of the land and the demolition of the building constituted a single transaction.

Thus, if it can be established that the acquisition of the built-up land is so closely linked to the demolition of the building that the division of the two transactions would be artificial, the tax classification of the property acquired and resold after demolition could remain unchanged. Demonstrating the link between acquisition and demolition will undoubtedly give rise to debate, but it is not inconceivable, despite the Promialp ruling, that this condition of ‘fiscal’ identity could be considered to be met in the case of the resale of a built-up site acquired by a developer who, at the time of acquisition, undertook to demolish the building on the site in order to resell it immediately afterwards.

14 – Finally, although we are right to consider that the Promialp decision should not be extended beyond situations in which the taxable reseller demolishes the building acquired in order to resell a building plot, it ‘mechanically’ has the effect of restricting the scope of application of VAT on the margin, including in situations in which no demolition takes place. In effect, this criterion of identical tax classification will mean that professionals who acquire built-up land, divide it up and resell the different lots as they are, without any demolition or construction being carried out, will not be taxed on their margin alone.

It is in such a situation that the invitation to proceed with a division of plots prior to acquisition, in order to distinguish the wheat from the chaff, the built from the ‘to be built’, takes on its full meaning and should, whenever possible, be favoured. However, in such a case, isn’t the principle of neutrality undermined? Two taxpayers will be subject to different tax assessment rules for the same purchase-division-resale transaction, depending on whether or not the simple division of the property changes the tax classification of the assets acquired…

15 – Prior to the 2010 reform, it is true that the margin tax regime only applied to purchases and resales of immovable property in the state in which they were sold, which generated profits for those engaged in this activity on a regular basis and which, under Article 35, I, 1° of the CGI, were deemed to be industrial and commercial profits²⁴. This historical argument is referred to by the public rapporteur in her conclusions at the foot of the Promialp judgment. Such a restriction, as we have seen, does not appear in the current text or in the parliamentary work that presided over its adoption.

It will be objected that as early as 1973, the Commission, in its report on the 6th Directive, warned of the difficulty, in the real estate context, of distinguishing between building land and built-up land: ‘a distinction between land developed for construction (infrastructure works, roads, levelling of the ground, laying of pipes, etc.) and built-up land is entirely artificial since, in both cases, a certain amount of work has been incorporated into the ground in an inseparable way’.

16 – This historical approach does not seem to us to resolve the difficulty of valuing property acquired and resold by a merchant. Admittedly, Article 392 of the Directive refers to goods acquired for resale. Yes, the margin scheme is an exception

xception, to be interpreted strictly, and the CJEU has ruled, in relation to second-hand goods, that the derogatory margin scheme must be assessed restrictively²⁵. However, this reference in the Directive only to goods acquired for the purpose of resale (without specifying that such resale must be ‘as is’), seems to us simply to require that the goods are acquired for the purpose of resale, and not necessarily to prohibit any upgrading or modification between acquisition and resale, provided that such upgrading or modification does not result in the production of a new good.

On the other hand, this reference to property acquired with a view to resale could result in a requirement that the property acquired be recorded as inventory, a condition that has not been included in Article 268 of the CGI. Such a purposive approach would be easy to implement. It would make it possible to distinguish the situation ruled on by the Conseil d’Etat from that in which a taxable person buys a building without this acquisition giving rise to a right to deduction, immobilises it and uses it on a long-term basis, before destroying it and reselling it as building land. In the latter case, there has been no ‘supply of buildings and building land purchased with a view to resale’ and it is inconceivable, in the light of the Directive and despite the wording of Article 268 of the General Tax Code, that taxation on the margin should be permitted.

17 – To be clear, we find this argument unconvincing. To justify its intransigence regarding the identity of the properties acquired and resold, the tax authorities maintain that the acquisition of a single lot different from the lots sold would make it impossible for the seller to know the price he would have paid if he had acquired each lot as such… It would therefore be impossible to determine the second term of the margin.

The Vogel response already weakens this reasoning: if it is possible to determine the cost price of each plot of land resulting from the division of a single lot, it is difficult to see how the presence of a building that is to be resold as such (or demolished) would prevent the determination of the plots of land resulting from the division of the single lot acquired.

In addition, it is interesting to note that in 2006 the French tax authorities stated that developers, who had to charge VAT on the margin on sales of plots to private individuals, could estimate the cost price of a plot by deducting a fraction of the total purchase price of the land, using the method of their choice and under the supervision of the French tax authorities²⁶. In terms of method, a simple ‘rule of three’, combined with a valuation of any built property, is sufficient to resolve most situations.

Finally, this same ‘accounting’ argument was put forward by the Danish and Greek governments in the context of a dispute over the VAT margin scheme for second-hand goods. They argued that the application of VAT on the margin presupposes identity between the goods purchased and the goods sold, which would not be the case in the event of the purchase of a complete motor vehicle and the resale of the spare parts taken from that vehicle. Applying the VAT margin scheme here too ‘would make it impossible to calculate the taxable amount, since the sale price and purchase price would relate to dissimilar goods’. The CJEU rejected this reasoning²⁷.

18 – It is with regard to the principles justifying taxation on the margin alone that the identity condition finds its legitimacy. As has been clearly pointed out and illustrated in these columns²⁸, the philosophy behind the derogatory system of taxation on the margin is to allow, where the acquisition of a good has not given rise to a right of deduction, to tax only the value added by the trader between the purchase and the resale, notwithstanding the deduction of VAT on work undertaken by him. Failure to do so would be tantamount to subjecting to VAT not the professional’s activity, but an asset acquired by him that was exempt from VAT.

This philosophy is reflected in the Commission’s work prior to the adoption of the 6th Directive²⁹: ‘residential property is in principle excluded from the scope of VAT as goods “consumed” by virtue of their first occupation. However, the sale of such a property to a taxable person, such as a property professional, results in the property re-entering the commercial circuit. To take account of this new commercialisation of the property, which would place too heavy a tax burden on the property trade, it was necessary to depart from taxation in accordance with the general principles’ and provide for the possibility of taxation on the margin.

On the other hand, such a system is no longer justified when the property being resold is a new one, created by the professional’s activity. This is the distinction between a trading logic (buying to resell), which does not seem to us to exclude any enhancement or modification of the good acquired and resold, and a production logic, in which the good acquired is merely the means enabling the creation of a new good or service.

By introducing this implicit condition of identity of qualification, the Conseil d’Etat endorses this distinction between trading and production. A safeguard was needed, and the fact that the French tax authorities erred on the side of pride by referring only to their own doctrine may have blinded taxpayers, who clung to the letter of Article 268 of the General Tax Code. Nevertheless, doesn’t the Promialp decision go too far, even when viewed solely through the prism of acquisition-demolition-resale? It seems to us that a more balanced approach is possible, and we will watch with interest the outcome of the referral to the Lyon Administrative Court, which is particularly aware of the issue³⁰. A reference to the CJEU for interpretation of Article 392 of the Directive would undoubtedly make it possible to