RBS Deutschland and ‘abuse’

The Advocate-General has delivered his opinion in the case of HMRC v RBS Deutschland Holdings GmbH (RBSD) (Case C-277/09) about the VAT treatment of cross-border leasing. This case raises the question of whether HMRC are right to focus on abuse of rights arguments to combat what it perceives to be unacceptable VAT planning.

The issue in this case was whether RBSD which was incorporated in Germany had the right to a repayment of UK VAT incurred when buying cars in the UK which were initially leased out of Germany into the UK for both business and personal use for about two years and then sold on. A lease of a car can be either a supply of goods or a supply of services. It is generally treated as a supply of services but where ownership of the...