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BFH submit to the Court on a point of sale issues in general, from the New

The questions relate to cases which sells inventory and equipment, the premises can be rented only to the person (BFH, Order of 14.7.2010 - XI R 27/08; published on 09.22.2010).

background:
subject to § 1 para 1 a UStG the transactions in the context of a business transfer to another operator for the enterprise to the tax. A business sale is when a company or a company is in the outline of the whole operation is carried on separately or without charge or introduced into a society. The recipient trader takes the place of Transferor. This exemption has their union legal basis in Article 5 paragraph 8 of Directive 77/388/EEC (now Article 19 of the VAT Directive). Thereafter, Member States may treat the transfer of the assets or part thereof, the consideration or not or as a contribution to a company, as if no supply of goods and the recipient is to be treated as the successor to the transferor.

The case before the BFH:
In case of dispute, the applicant had operated a retail store with sporting goods in a shop in it owned. Later they sold the inventory and office equipment to a limited liability company, who rented the shop for an indefinite period. The lease on the shop could by any party within three business days of a calendar quarter will be terminated at the end of the next calendar quarter. The applicant has indicated in its statement to the GmbH on the sale of inventory and office equipment from any sales tax, and subjected to the process not the sales tax because they are of a non-taxable transfer of a business as a whole went out. In contrast, the Finanzamt tax laid against the applicant.

The BFH further:
Since the applicant does not, the shop also the GmbH had sold, but only leased, are in the opinion of the BFH doubt whether it can be expected in such a case of a "transfer" of an estate in the sense of Article 5 paragraph 8 of Directive 77/388/EEC. This question has submitted to the BFH to the interpretation of EU law relevant ECJ. In the event that in the examination of the conditions of Article 5 paragraph 8 of Directive 77/388/EEC, the rent of the shop, it should be referred to the ECJ, the BFH, the further question whether this depends on whether the shop was closed by a long lease period left to use or whether the lease-as in the dispute - an indefinite period running and is terminable by either party in the short term. This question is also not clarified by European Union law. Following the recent Court of BFH may be a non-taxable transfer of a business even if some essential operating principles have not been mitübereignet. Precondition is that they be left to the contractor for use in the long term and sustained continuation of the company is ensured by the contractor (see, eg, BFH, Judgement of 04.07.2002 - VR 10/01). Where he meets the financial administration (see section 5 paragraph 1, sentences 6-8 UStR).

source: BFH online