Commuting by company car is considered private use for VAT purposes. Does this change if the employee works (a lot) from home?
Main rule
The Advocate General (AG) at the Supreme Court concludes of not. The AG notes that the Court of Justice's Fillibeck ruling shows that the main rule is that commuting is considered private use because the employee makes the choice of the place of residence. And that choice determines the length of the journey and the means of transport the employee will use. The AG does not see how this becomes different when the employee works from home.
Special circumstances
The mere circumstance that moving from the home to the place of work is necessary for the performance of the work is insufficient to conclude that no private kilometres are involved. Certain special circumstances can we as a result that no private mileage is involved. The ECJ mentions as circumstances: that only the employer can provide a suitable means of transport or that the place of work is not fixed but changes (the Fillibeck judgment concerns construction workers working at different construction sites).
Commuting address
Stakeholder argues that because the employee is allowed to work from home, the employee's home has become a commuting address. When the employee then has to come to the office anyway, it is a business trip between two workplaces. According to the AG, this argument does not hold because it fails to recognise that the home of an employee who (also) works from home also has a private character.
We look forward to the Supreme Court's verdict.
On 18 August 2023, the Supreme Court confirmed the AG's view. The ability of employees to work from home, the Supreme Court said, does not change the nature of the journeys they make between their home and their employer's office.