Then the issue of the legality of this statement

By decision of 27 February 2006 (1), the Council of State censured the trial of 16 March 2005 on the application of VAT to sales take-out food (2). It opportunely reminds the tax administration that it cannot, through tax instructions having the character of administrative circulars restricting the scope of the Act. It thus punishes a weakness of the administration which, under the guise of interpretation of the tax law, changed the scope of a text that she was required to apply faithfully. The cancellation of tax instructions is sufficiently common to justify a few explanations.

Several professional organizations of the restoration (national Union of organized public restoration, trades and catering industries Union, national Union of the thematic restoration of strings) challenging the contested statement, interpreting section L.278 bis of the General Tax Code, wearing the VAT rate of 5.5 to 19.6 for all products for sale takeaway food carried out by automatic equipment located in catering facilities.

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You should know that a L.278 section of CGI provides that VAT is perceived at a reduced rate of 5.5 on certain operations (purchase, import, sale, delivery, commission) without distinguishing between sales takeaway from automatic devices located in catering facilities or in other places. To consume on-site sales are taxed at the normal rate. However, education refused a reduced rate of VAT to sales to take performed in automata on the premises of foodservice since consumption could avoir place on place.

Restaurateurs, seeing themselves apply without exception the full VAT on all sales, take-out rate brought the matter before the Council of State that gave them reason: the high administrative court acknowledged the partial illegality of the statement which illegally limited the application of the normal rate of VAT to only food restaurants realizing sales to go by automatic equipment.

First of all, the Council of State acknowledged that professional bodies were admissible to challenge this statement insofar as this text "made grievance", since it affected their interests. However, according to the principles laid down by the case law of the Council of State (3), extended the tax instructions since 2003 (4) a statement is declared to grievance when it contains "mandatory provisions in General." However, there was no doubt that the statement contained such provisions, using formulas "are now viewed as" or "are" for supposedly interpret the CGI section. Considering that these particulars were imperative, the Council of State found that the statement was impeachable.

Then the issue of the legality of this statement. According to the decision of principle of 2003 (4), circulars for which the remedy was found admissible incur cancellation if their provisions "ignore the meaning and scope of the legislative or regulatory provisions that it intended to clarify. For the Council of State, section L.278 bis of the CGI implies that food takeaway sales are subject to the normal rate of VAT only if it is possible to establish that the sales and services consumed on the spot, the presence of the necessary facilities, are overriding all of the provided benefit. Otherwise, sales to remain subject to the reduced rate. However education systematically submitted to the full VAT rate sales with automatic distribution devices whenever there was presence of facilities for the client to consume them on the spot, without checking whether these sales were pervasive. However, she would benefit from a reduced rate of VAT sales by machines installed in other places even though they had, in fact, the same amenities (tables and chairs) as food. This situation creating distortion of competition between operators in the sale of products to take away, the Council of State sanctioned tax administration for ignorance of the law, thus giving organisations a legitimate satisfaction.