Advocate General Kokott has given an opinion in the case Posnania Investment.
The transfer of ownership of a plot of land by the taxable person for the purposes of VAT to the tax creditor, resulting in the discharge of the tax debt by operation of law, does not constitute a transaction that is subject to VAT within the meaning of Article 2(1)(a) of the VAT Directive. In that respect, the taxable person is not acting as such. However, a deduction of input tax made in relation to the transferred property must be corrected in accordance with Article 16 of the VAT Directive.
The prerequisite is that the possibility of settling taxes by means of benefits in kind in lieu of payment is available only to the tax debtor and is only executed by the public-law contract provided for. In that respect, the parties must not have any influence on the ‘purchase price'. On the contrary, the latter must be determined according to objective valuation standards, which is a matter for the referring court to verify.
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