Global Trends in VAT/GST and Direct Taxes

S. 313I. The share deal in the European VAT system

A. The share deal problem: a classic of European VAT case law

When speaking about challenges and unsolved problems in European VAT law, many people primarily think of VAT issues brought about by recent developments in the globalized digital economy. Apart from these, European VAT law however still has a number of “long-term classics” that have been under discussion among academics and before the courts for decades. One of these classics is the VAT treatment of share deals.

To the uninitiated it might be surprising that the VAT treatment of share deals is a relevant topic at all, given that under a superficial view, the topic should be largely settled by the financial transactions exemption of Art. 135 (5) VAT Directive. If we look at the existing case law the issue however proves to be more complex.

Firstly, questions on the VAT treatment of share deals usually go to the very heart of the VAT system, touching upon fundamentals like the taxable person status, the linking of mixed use inputs to economic activities and the scope and boundaries of the VAT exemptions. Secondly, there is the complex and fragmented judicial practice of the ECJ, whi...