A decision of the Council of State of April 11, 2014 allows us to complete our ABéCéDaire study concerning education for remuneration. This judgment reverts in fact to the subject to the Value Added Tax (VAT) of the courses given by the holder of a State Certificate of Sports Educator (BEES).
Back to the facts
The holder of a BEES has been exercising since 2000, as an independent worker, the liberal profession of climbing instructor. As such, and under a contract binding it to a Municipal Sports Office (OMS), it provided introductory courses in primary schools two days a week.
Following a check, the tax administration decides to subject the teacher to VAT on the basis of the income derived from his activity.
Contesting this decision, he seized the administrative jurisdiction. The Versailles Administrative Court of Appeal, in its judgment of July 21, 2011, granted its requests by relieving it of the VAT reminder. The Minister responsible for the budget then appealed to the Supreme Court.
Article 256 I of the General Tax Code (CGI)
The supply of goods and the provision of services made for consideration by a taxable person acting as such are subject to value added tax..
Article 256 A, paragraph 1 CGI (in the wording applicable at the time of the facts)
Persons who independently carry out one of the economic activities mentioned in the fifth paragraph are subject to value added tax, regardless of their legal status, their situation with regard to other taxes and the form or nature of their employment. intervention.
Article 261 CGI
The following are exempt from value added tax: / 4 (...) 4 ° a. Services and supplies of goods which are closely related to them, carried out within the framework of: / primary, secondary and higher education provided in public and private establishments (...) / b. Courses or lessons relating to school, university, professional, artistic or sports education, taught by natural persons who are paid directly by their students.
VAT-exempt courses under certain conditions
The Council of State first of all recalls the applicable legal rules.
Article 13 i. and j. of the Sixth Directive of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes under the terms of which the exemptions thus provided relate to "childhood or youth education, school or university education, vocational training or retraining, as well as the provision of services and the supply of goods closely related to them, carried out by bodies governed by public law of the same object or by other bodies recognized as having comparable purposes by the Member State concerned" and on "lessons given, on a personal basis, by teachers and relating to school or university education".
The judges deduce that the exemption provided for in article 261 4 4 ° a. CGI "must be regarded as limited to the possible remuneration of the courses and lessons given in the schools or universities which they mention and perceived by the latter".
Also, this exemption cannot extend to the remuneration which may be received by the natural person who has given the courses and whose rights to exemption are exclusively governed by the provisions of article 261 4 4 ° b CGI.
Thus, after noting that the professor exercised his teaching activity in a liberal capacity in schools under a contract binding him to an OMS, for the Council of State, the Court of Appeal committed an error of law judging "that the remuneration he received as a result of this service was exempt from value added tax by application of the provisions" of article 261 4 4 ° a. of the CGI.
The Minister is therefore entitled to request the annulment of the contested judgment. The Council of State refers the case to the Court of Appeal of Versailles.
