Transfer of property on which no act related to economic activity has been performed

The TEAC establishes that acts and operations that are a consequence of the simple exercise of the right of ownership over a good by its owner, even if it is an entrepreneur or professional, are not part of the concept of economic activity for VAT purposes.

An entity is subject to a verification procedure limited by the VAT concept, as a result of which the Administration issues a provisional liquidation with the result to be entered. This regularization consists of the reduction of the supported fee deducted by the entity, which corresponds to a plot that it has acquired and which, in the opinion of the Management Unit, was not subject to VAT, since it does not consider it proven that the said plot was It affects the business assets of the selling entity, dedicated to the rental of premises, so it should not have passed any VAT to the acquirer for the operation. The verified entity files a replenishment appeal that is dismissed.

The TEAC indicates that the selling entity is a commercial company, whose operations are subject to the tax provided it has the status of entrepreneur for VAT purposes.

Since the regularization practiced consists in the inadmissibility of the deductibility of a quota supported by the entity, it should be remembered that the deduction of quotas supported by businessmen or professionals is a right exercisable by the interested parties, to whom the burden of proof of the requirements required for its application.

In this regard, the TEAC considers that in the verification procedure the acquirer has not proved that she was entitled to the deduction of the VAT supported. It does not doubt that the transferor is an entrepreneur for the purposes of this tax, but that the transfer of the property is outside the scope of VAT because said entity did not carry out any business operation during the years that formed part of its assets .

And for this, it is based on the concept of economic activity given by the CJEU doctrine, according to which acts and operations that are a consequence of the simple exercise of the property right over a good by part are not part of this concept for VAT purposes of its owner.

Go deeper into this criterion by going to the TS, which concludes in a sentence that as well as the condition of taxpayer is acquired when there are sufficient indications that the acquired goods are going to be destined to the development of a business or professional activity, in the same way it occurs The loss of this condition is lost when equally objective circumstances occur that indicate that no business or professional activity will take place.

For all the above, the TEAC concludes by confirming the non-subjection of the transaction to VAT, so there is an undue impact of the fee for the transmitting entity that has been supported and deducted by the acquirer.

However, this Court considers that the request for the return of undue income presented by the acquirer while the liquidation issued by the Management Unit was provisional and not firm, was not filed in a timely manner. It is for this reason that it also gives the reason to the Administration in its initial refusal, since the beginning of the limitation period for this request must be that of the firmness of the administrative act at issue.

The TEAC concludes by indicating that the foregoing does not prevent the claimant from requesting the return of undue income again, once the liquidation has acquired firmness.