“1. The grant of any interest in or right over land, or of any licence to occupy land ….” 75. The Notes to Group 1 state: “(1) “Grant” includes an assignment or surrender and the supply made by the person to whom an interest is surrendered when there is a reverse surrender.” 76. It is clear, and HMRC did not seek to argue otherwise, that as a matter of English land law an option to purchase land creates an interest in land - it creates an equitable interest in land which can be protected by a notice, in the case of registered land, or by a Class C(iv) land charge, in the case of unregistered land: see Pritchard v Briggs[1980] Ch 338 at 419B. [4] It is a right in rem binding against third parties if registered as a notice at the Land Registry or on the Land Charges Register. 77. Therefore, applying the words of Item 1 Group 1 (together with the Note to Group 1), it seems to us that the release by Landlinx of the option was a “surrender” of an interest in land. 78. Although the Option Agreement created an interest in land as a matter of English land law, the real question in this appeal is whether, reading Articles 14, 24 and 135(1)(j) together, the rights which were created by the Option Agreement and which were released by Landlinx to the grantor fell within the exemption afforded by Article 135(1)(j). 79. As already noted, in Safe the Court interpreted Article 5 (now Article 14) as follows: “6. It should be noted that art 5(1) of the Sixth Directive provides as follows: '“Supply of goods” shall mean the transfer of the right to dispose of tangible property as owner.' 7. It is clear from the wording of this provision that 'supply of goods' does not refer to the transfer of ownership in accordance with the procedures prescribed by the applicable national law but covers any transfer of tangible property by one party which empowers the other party actually to dispose of it as if he were the owner of the property. 8. This view is in accordance with the purpose of the Sixth Directive, which is designed, inter alia, to base the common system of value added tax on a uniform definition of taxable transactions. This objective might be jeopardised if the preconditions for a supply of goods—which is one of the three taxable transactions—varied from one member state to another, as do the conditions governing the transfer of ownership under civil law. 9. Consequently, the answer to the first question must be that 'supply of goods' in art 5(1) of the Sixth Directive must be interpreted as meaning the transfer of the right to dispose of tangible property as owner, even if there is no transfer of legal ownership of the property.” 80. We do not, however, interpret Safe to require that in order for a transaction to fall within Article 135(1)(j) it must be a supply of goods. In Safe there were two potential transactions which could fall within (what is now) Article 135(1)(j). First, there was the contract between Safe and Kats which effectively, by contract, transferred the economic ownership of the property to Kats. Secondly, there was the legal transfer of the property from Safe to the third party. Both of these transactions involved, respectively, transferring the whole of the economic and legal interest which Safe owned to the other party. That there was a supply of goods from Safe to one of the other parties was clear enough, because the underlying property comprised physical land and buildings, but the real question was which transaction constituted the supply of goods i.e. which transaction conferred on the other party the right to dispose of the property as owner. 81. What Safe did not deal with, or even consider, was whether it was necessary in order to fall within Article 135(1)(j) for the supply to constitute a supply of goods or whether a lesser or derivative interest in land and buildings (such as an option), and which might constitute a supply of services, could also fall within that exemption. 82. In Lubbock Fine , however, Advocate General Darmon assumed that it was necessary for a transaction to constitute a supply of goods to fall within Article 135(1)(j). That case involved the surrender of a lease. The taxpayers argued that that surrender fell within Article 135(1)(l) as a transaction related to the leasing of land. The CJEU agreed with that argument and found it unnecessary to decide the second question posed to the Court viz whether the surrender of the lease would fall within the forerunner of Article 135(1)(j). The Advocate General, however, considered whether a surrender of the lease would fall within Article 135(1)(j) and concluded that it would not. He said: “74. Is a surrender of a lease covered by the concept of 'the supply of buildings or parts thereof, and of the land on which they stand, other than as described in Article 4(3)( a )'? 75. It is common ground that the latter provision—which concerns the supply of a building before first occupation—has no bearing on this dispute. 76. Article 13B( g ) [now Article 135(1)(j)] lays down an exception to the general principle laid down by art 2 of the Sixth Directive, according to which supplies of goods are subject to VAT. 77. Consequently, a transaction can fall under the exemption in art 13B( g ) only if it constitutes a supply of goods in the generic sense of art 2. 78. Article 5 of the directive provides that the '"supply of goods" shall mean the transfer of the right to dispose of tangible property as owner'. 79. In its judgment in Staatssecretaris van Financiën v Shipping and Forwarding Enterprise Safe BV (Case C-320/88 )[1991] STC 627 at 638 ,[1990] ECR I-285 at 303, para 7, the court held that that term was to be given a Community definition, stating that: 'It is clear from the wording of this provision that "supply of goods" does not refer to the transfer of ownership in accordance with the procedures prescribed by the applicable national law but covers any transfer of tangible property by one party which empowers the other party actually to dispose of it as if he were the owner of the property [emphasis added].' 80. Even by the surrender of a lease a tenant cannot transfer to the owner the power of disposal which the former never had and the latter never lost. (An owner may sell a property even when it is let.) 81. Consequently, the surrender of a lease cannot be regarded as a 'supply of goods' for the purposes of art 2. Nor, therefore, can it fall within the definition in art 13B( g ). 82. The Community definition of the 'supply of goods' cannot vary according to the articles of the Sixth Directive. 83. I scarcely need to point out that a surrender of a lease cannot be assimilated to 'the supply of buildings or parts thereof, and of the land on which they stand'. 84. As the United Kingdom government correctly states, the terms 'land' or 'land which has not been built on' refer to the 'physical' concepts and not the rights in the land or the land which has not been built on. 85. I therefore conclude that the surrender of a lease does not fall within the scope of art 13B( g ).” 83. It will be observed that the Advocate General simply assumed at [76]-[77] that, to fall within what is now Article 135(1)(j), the supply of land and buildings must be a supply of goods. In respectful disagreement with the Advocate General we would make the following points. 84. First, at [76]-[77] the Advocate General refers to Article 2 of the Sixth Directive. But Article 2 specifies that both supplies of goods and services shall be subject to VAT. 85. Secondly, the Advocate General merely assumes, without citing any authority, that a supply within what is now Article 135(1)(j) must be a supply of goods - the issue received no reasoned consideration. 86. In our view, however, Article 135(1)(j) comprehends both supplies which comprise the transferor’s entire interest in the land and buildings but also the transfer of a lesser or derivative interest in the land and buildings i.e. interests in rem in the land and buildings, such as the Option Agreement in this appeal 87. We reach this view for the following reasons. 88. It seems to us that the purpose of Article 135(1)(j) is to exempt transactions in relation to immovable property as a general matter, subject to certain specified exceptions. This was the position of the Commission in Lubbock Fine itself where the Judge Rapporteur at[1994] STC 101 at 110 records the Commission’s argument as follows: “The view of the Commission is that, if the court finds that the surrender of a lease does not fall within the concept of the 'letting of immovable property', it must be covered by the words 'supply of buildings or parts thereof and of the land on which they stand' appearing in art 13B(g) of the Sixth Directive. That contention is based on the general principle of the exemption of immovable property which the Sixth Directive seeks to achieve. The only exclusion from that exemption is the supply of immovable property described in art 4(3)(a) of the directive, that is to say the supply of buildings before first occupation.” 89. The rationale for exempting immovable property from VAT was set out by the Advocate General himself in Lubbock Fine as follows: 23. Immovable property raises a number of specific problems for VAT purposes (such as e.g. double taxation). It is understood at two levels in the Sixth Directive: (1) as a final product supplied to a final consumer at the end of an economic production cycle; (2) as a means of production the cost of which is reflected in the price of goods or services. 24. In the first respect the production cycle of immovable property, beginning with its purchase, progressing through the construction phase and ending with its first sale, is normally assimilated to the production cycle for goods and hence is subjected to VAT. 25. More specifically, even an isolated transaction in immovable property may be taxable. Thus, art 4(3) of the Sixth Directive provides: 'Member States may also treat as a taxable person anyone who carries out, on an occasional basis, ... (a) the supply before first occupation of buildings or parts of buildings and the land on which they stand ...; (b) the supply of building land ...' 26. In that case VAT is imposed on the final price of the immovable property, whatever the components of that price. It is the concept of 'first occupation' which is used to determine the moment at which the property leaves the production process and becomes the subject of consumption (that is to say, occupied by its owner or a tenant). 27. On the second point, with respect to buildings after first occupation, a distinction must be made. 28. A building is excluded from the tax since it has already been 'consumed' by virtue of its first occupation. Transactions concerning the building are therefore, in principle, exempt. 90. That rationale, it seems to us, applies as much to a supply of a lesser or derivative interest in land and buildings as it does to the transfer of the whole interest in land and buildings. 91. In the present case, the land which was the subject of the Option Agreement, as we understand it, had already been “consumed” by virtue of its first occupation and, therefore, subsequent transactions concerning the land should be exempt because they had left the production process. [5] 92. This reflects the purpose of the PVD in relation to the VAT status of transactions in land. 93. That the general purpose of the PVD was to exempt transactions relating to land, with certain specified exceptions, was explicitly recognised by the CJEU in Caixa d'Estalvis i Pensions de Barcelona [2014] EUECJ C-139/12 at [26]: “As a preliminary point, it must be noted that, to a large extent, the Sixth Directive exempts from VAT transactions relating to immovable property. In that regard, Article 13B(g) and (h) of that directive exempts, in particular, the transactions relating to immovable property which it lists, except those referred to in Article 4(3)(a) and (b) of that directive, namely, in particular, the supply of new buildings or of building land. In addition, those provisions are without prejudice to the possibility conferred on Member States, pursuant to Article 28(3)(b) of the Sixth Directive, read in combination with point 16 of Annex F to that directive, to continue to exempt also supplies of those buildings and land referred to in Article 4(3) thereof.” 94. Furthermore, if the grant of an option, as HMRC contends, were not to be exempt from VAT this would lead to strange results - two economically equivalent transactions would be taxed in different ways. Thus, if a vendor of land sold the land to a purchaser for£1 million the transaction would be exempt from VAT. If, however, the vendor granted the purchaser a call option over the land for an option premium of£100,000 and an option exercise price of£900,000 , and the option was exercised the option premium would be subject to VAT at 20% and the remaining purchase price of£900,000 would be exempt. Thus a “one-step” purchase will be taxed differently from a “two-step” purchase even though the economic effect of both transactions was the same. It is hard to believe that this was the intention of the Sixth Directive and it is even more difficult to conclude that such a result accords with the principle of fiscal neutrality. This would be a strange result, which of itself suggests that it cannot be right. 95. The exemption contained in Item 1 Group 1 Schedule 9 first appeared as Item 1 Group 1 Schedule 5Finance Act 1972 , well before the introduction of Article 13B(g) of the Sixth Directive (the forerunner of Article 135(1)(j) of the PVD). Prior to the Sixth Directive, exemptions from VAT were determined by each Member State, after consultations with the Commission (Article 10 (3) of the Second Directive 1967). [6] 96. Thus, it appears that in 1972 the UK had decided to exempt all transactions dealing with interests in land (subject to certain specified exceptions) and once Article 13B(g) of the Sixth Directive came into force, the UK simply allowed the exemptions contained in Item 1 Group 1 Schedule 5Finance Act 1972 and the provisions ofsection 5(6) Finance Act 1972 to continue in force. 97. Moreover, it is clear from the legislative history of the Sixth Directive that the list of exemptions which it contained were drafted with the existing exemptions contained in the national law of Member States in mind, which supports our main conclusion that Article 13B(g) and (h) of the Sixth Directive was not intended to narrow the scope of Item 1 Group 1 Schedule 5Finance Act 1972 (now Item 1 Group 1 Schedule 9 VATA). 98. The “Proposal for a sixth Council Directive on the harmonisation of Member States concerning turnover taxes Common system of value added tax: Uniform basis of assessment [7] stated: “Article 10(3) of the second Directive left the Member States completely free, subject to the obligatory consultations provided for in Article 16, to provide for whatever exemptions they thought fit; whereas the purpose of the present Directive, dictated by the need to ensure equality of treatment as between the various Member States as regards collection of the Community's own resources, is that there should be uniformity as to the transactions which are taxable. This necessarily implies uniform rules as to exemptions. The list of exemptions has been drawn up having regard (i) to the exemptions already existing in the various Member States , and (ii) the need to keep the number of exemptions as small as possible.” (Emphasis added)
"1. The grant, assignment or surrender of any interest in or right over land…" [3] "