On March 22, 2018 on the website of the Court of Justice of the European Union (CJEU) the opinion of Advocate General Wahl in the Case C-648/16, Fortunata Silvia Fontana versus Agenzia delle Entrate - Direzione provinciale di Reggio Calabria (ECLI:EU:C:2018:213) was published.
From introductory remarks made by the Advocate General
Do the provisions of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax and the principles governing the VAT system preclude national legislation that allows the authorities to assess the tax due by a taxpayer presumed to have underdeclared VAT through an inductive method based on sectoral studies which estimate the likely revenues of certain categories of taxpayer?
That is, in a nutshell, the question raised by the present proceedings referred by the Commissione tributaria provinciale di Reggio Calabria (Reggio Calabria Provincial Tax Court, Italy).
Facts, procedure and the question referred
· Ms Fortunata Silvia Fontana was subject to a tax adjustment procedure for 2010 of her VAT, inter alia.
· The Agenzia delle Entrate (the Tax Office, Italy) sent her, on 14 May 2014, an invitation to appear before it, which led to the opening of an inter partes procedure in which Ms Fontana submitted observations and produced documents intended to refute the determinations by which it was presumed that her revenues were higher than those declared. However, the Tax Office did not find the arguments and documents put forward persuasive and, on 24 December 2014, it sent Ms Fontana a tax assessment notice concerning the year 2010 for, inter alia, unpaid VAT.
· The tax assessment procedure resulted from the application, to Ms Fontana, of the sectoral study relating to the category of accountants and tax advisers.
· The applicant brought an action before the Commissione tributaria provinciale di Reggio Calabria (Reggio Calabria Provincial Tax Court) contesting, inter alia, the amount of VAT arrears claimed by the Tax Office. In particular, she claimed that the Tax Office had wrongly applied to her situation the sectoral study relating to public accountants and tax consultants, instead of the study relating to human resources management advisers, which she considered to be her main activity. In addition, she argued that the amount of VAT claimed by the Tax Office had merely been determined on the basis of a sectoral study which disregarded the economic activities she had actually carried out.
· That court, harbouring doubts as to the correct interpretation of EU law, decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:
‘Do Articles 113 and 114 TFEU and [the VAT Directive] preclude the Italian domestic legislation in Articles 62sexies(3) and 62bis of Legislative Decree No 331/93 [converted into law by] Law No 427 of 29 October 1993, which allows the application of VAT to the overall turnover established by extrapolation, in the light of the principle of deduction and the obligation to recover the tax and, more generally, the principle of the neutrality and the passing-on of the tax?’
· Written observations have been submitted by the Italian Government and the Commission. They also presented oral argument at the hearing on 18 January 2018.
The Advocate General proposes that the Court answer the question referred for a preliminary ruling by the Commissione tributaria provinciale di Reggio Calabria (Reggio Calabria Provincial Tax Court, Italy) as follows:
The principles of proportionality and of fiscal neutrality underpinning Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax do not preclude national legislation that allows the authorities to assess the tax due by a taxpayer presumed to have underdeclared value added tax through an inductive method based on sectoral studies which estimate the likely revenues of certain categories of taxpayer, provided that such legislation is applied in conformity with Articles 47 and 48 of the Charter of Fundamental Rights of the European Union.
It is for the referring court to determine whether the concrete application of that legislation in a specific case infringes those principles, having regard to all the circumstances of the main proceedings.
From the assessment as made by the Advocate General
· By its question, the referring court asks, in essence, whether the provisions of the VAT Directive and the principles governing the VAT system must be interpreted as precluding national legislation, such as that at issue in the main proceedings, that allows the authorities to assess the tax due by a taxpayer presumed to have underdeclared VAT through an inductive method based on sectoral studies which estimate the likely revenues of certain categories of taxpayer.
· To the best of my knowledge, the Court has, thus far, never examined the compatibility of national legislation similar to that at issue in the main proceedings with the rules and principles governing the VAT system. Regrettably, despite the fact that that legislation has a number of specific features, the referring court does not give many explanations for its possible incompatibility with the rules and principles of the VAT system.
· At any rate, from the order for reference, it would seem that the doubts of the referring court concern mainly a possible breach of the principles, underpinning the VAT Directive, of proportionality and fiscal neutrality. In particular, the referring court wonders whether a system whereby the VAT to be paid by a taxpayer is not assessed on the basis of the individual transactions carried out by him, but calculated with respect to his estimated global turnover, might not adversely affect the taxpayer’s ability to, on the one hand, deduct input VAT and, on the other hand, ‘pass-on’ output VAT to his customers. In particular, the referring court emphasises that the taxable person remains liable for the whole amount of the tax considered due by the tax authorities, including any portion of that tax that he should have invoiced to his customers.
· Against that background, given the aforementioned brevity of the order for reference and the not particularly detailed submissions of the Italian Government, I will focus my analysis on those specific issues, leaving aside other elements which have not been expressly brought to the attention of the Court and, as a consequence, discussed by the parties.
· Before examining those issues, however, I consider it useful to briefly outline how the national legislation at issue in the main proceedings functions.
A. The sectoral studies
· As far as I understand, the sectoral studies at issue in the main proceedings are prepared and approved by the Italian Ministry of Finance, after consultation with the relevant trade and professional bodies.
· Those studies are based on economic analyses and statistical and mathematical techniques, and are used to estimate the likely revenues of certain categories of taxpayer. That is done by identifying the potential capacity of those categories of taxpayer to generate revenue, in the light of the internal and external factors that may affect that capacity (such as the timetable of activity, the market situation, etc.). More concretely, sectoral studies are prepared by surveying, for each category, the relationship between accounting and structural variables, both internal to the company (production process, sales area, etc.) and external (demand trends, price levels, competition). Sectoral studies also take into account the characteristics of the territorial area in which the taxpayers operate.
· Sectoral studies may be used by the taxpayers as a point of reference when submitting their declarations to the Tax Office and are also used by the latter for checks. The sectoral study that is applicable to a given situation is that which is relevant for the ‘predominant activity’ of the taxpayer: the activity that has generated the highest amount of revenue for the taxpayer in the relevant period.
B. The general framework
· Having illustrated the main characteristics of the national legislation at issue, I find it useful to briefly reiterate the relevant provisions of EU law as well as the Court’s case-law on those provisions. Indeed, in a number of cases, the Court has already provided clarification on various aspects of VAT law which are of importance in the present proceedings.
1. The role of taxpayers and the taxable amount
· First, it should be emphasised that the basic principle of the VAT system is that it is intended to tax only the final consumer. Consequently, the taxable amount serving as a basis for the VAT to be collected by the tax authorities cannot exceed the consideration paid by the final consumer which is the basis for calculating the VAT ultimately borne by him. Indeed, it is not the taxable persons themselves who bear the burden of VAT. The sole requirement imposed on them when they take part in the production and distribution process prior to the stage of final taxation is that, at each stage of the process, they collect the tax on behalf of the tax authorities and account for it to them.
· Article 73 of the VAT Directive states that the taxable amount, in respect of supplies of goods and services, is everything which constitutes the value of the consideration which has been or is to be obtained by the supplier from the purchaser. That consideration is thus the subjective value, that is to say, the value actually received, and not a value estimated according to objective criteria. Were the tax authorities to charge an amount exceeding the tax actually paid by the final consumer, the principle of neutrality of VAT vis-à-vis taxable persons would not be complied with.
· In order to guarantee complete neutrality of the system as far as taxable persons are concerned, the VAT Directive provides for a system of deductions designed to ensure that the taxable person is not improperly charged VAT. A basic feature of the VAT system is thus that VAT is chargeable on each transaction only after deduction of the amount of VAT borne directly by the cost of the various price components of the goods and services.
2. The obligations of taxpayers
· Second, pursuant to Article 242 of the VAT Directive, every taxable person is to keep accounts in sufficient detail for VAT to be applied and its application checked by the tax authorities. Article 244 of that directive also requires taxable persons to ensure that copies of the invoices issued and received by them are stored. Further, under Article 250(1) of the same directive, taxable persons must submit a VAT return setting out all the information needed to calculate the tax due to the State.
· As the Court has consistently stated, it follows from Articles 2, 250(1) and 273 of the VAT Directive, and from Article 4(3) TEU, that the Member States are required to take all legislative and administrative measures appropriate for ensuring collection of all the VAT due on their territory and for preventing evasion. Fraudulent acts of a taxable person, such as concealing supplies and revenue, must not hinder the collection of VAT. The Member States’ authorities must, in that case, act so as to re-establish the situation that would have prevailed in the absence of tax evasion.
· The Court has also held that, outside the limits laid down therein, Article 273 of the VAT Directive does not specify either the conditions or the obligations which the Member States may impose and therefore gives the Member States a margin of discretion with regard to the means of achieving the objectives mentioned above. However, the measures which the Member States may adopt under Article 273 of the VAT Directive to ensure the correct collection of the tax and to prevent evasion must not go further than is necessary to attain such objectives (proportionality) and must not undermine the neutrality of VAT.
· The same principles apply with regard to the penalties that Member States may impose in the event of infringements of obligations stemming from the VAT legislation. In the absence of a system of penalties in the VAT Directive, Member States retain the power to choose the penalties which they deem appropriate. They must, however, exercise that power in accordance with EU law and its general principles. In particular, those penalties cannot breach the principle of proportionality and undermine the neutrality of VAT.
C. The issues raised in these proceedings
· It is against this framework that I shall examine the issues raised by the present proceedings. However, I will consider only whether national legislation that allows the tax authorities to assess the tax due by a taxpayer presumed to have underdeclared VAT through an inductive method based on sectoral studies is per se against the principles of proportionality and of fiscal neutrality.
· Indeed, because of the division of competences between the Court of Justice and the national courts, it is for the latter to determine, in the light of the guidance provided by the former, whether the concrete application of that legislation in a specific case may infringe those principles, having regard to all the circumstances of the main proceedings.
1. Principle of proportionality
· As regards the principle of proportionality, I shall explain below why I take the view that a system such as that laid down in the national legislation at issue does not go beyond what is necessary to ensure collection of all VAT due and to prevent evasion.
· To begin with, it must be borne in mind that, in the case of fraud or tax evasion, the tax authorities may — and arguably should — disregard the incorrect VAT returns submitted by a taxpayer and, where necessary, deviate from the results of the accounts kept by him. The tax authorities must calculate the amount of VAT due by the taxpayer, on the basis of the transactions actually carried out by him, even if no invoice was issued and no record of those transactions can be found in the accounts.
· To my mind, in order to fight tax evasion stemming from the ‘black economy’ effectively, tax authorities might often need to resort to inductive methods, or have recourse to a certain number of assumptions, when estimating the economic results of taxpayers suspected of having committed errors or wrongdoings. Especially where there is no paper trail to follow to reconstruct the reality, it seems almost inevitable that, at times, the tax authorities may consider prima facie established facts that, taking all the relevant circumstances into account, appear to be very likely.
· There is, in my view, no reason why the tax authorities should not, in that context, make use of statistical and economic data to generate realistic benchmarks and detect possible anomalies. The choice of using an instrument such as sectoral studies to identify taxpayers that may have underdeclared VAT and assess the amounts possibly outstanding seems, therefore, to fall within the leeway that the VAT Directive grants Member States to ensure collection of all VAT due and prevent evasion.
· However, it is hardly necessary to point out that the final determinations made by the tax authority regarding any outstanding tax must faithfully reflect the reality of taxpayers’ economic results. In other words, any adjustment made by the tax authority must, obviously, be correct in itself. For that to be the case, if an inductive method is used to estimate a taxpayer’s turnover, that method must be capable of leading to truthful results. More specifically, if sectoral studies are employed to yield certain assumptions, those studies thus need to be accurate, reliable and up-to-date.
· Indeed, as mentioned above, leaving aside any penalty that might be legitimately imposed for fraud or evasion, the tax authorities cannot claim, as undeclared VAT, more than the amount that a taxpayer has (or should have) received from his customers. The tax authorities cannot conflate recovery of unpaid VAT with the imposition of penalties for breaches of VAT rules. Those are distinct instruments, of a different nature and with different functions.
· Accordingly, where there are no precise data relating to the relevant taxable transactions, Member States need to use procedural instruments that reconcile the need to permit detection of undeclared VAT and facilitate the calculation of it, with the requirement that the amounts that will be claimed as unpaid approximate as closely as possible, and do not go beyond, those allowed under Article 73 of the VAT Directive. Such a position appears to be confirmed by recital 59 of the VAT Directive which expressly recognises the leeway that Member States, within certain limits and subject to certain conditions, are to enjoy in order to adopt measures aimed at simplifying the levying of taxes and preventing tax evasion or avoidance.
· Against that background, national legislation that were to permit the tax authorities to establish the existence of undeclared VAT and to determine its amount merely (or mainly) on the basis of presumptions deriving from divergences between the revenue declared by a taxpayer and that estimated on the basis of a sectoral study would not seem to me to strike the right balance between those two requirements. On the one hand, such a system would admittedly simplify the tax office’s task of collecting taxes and preventing tax evasion and avoidance. On the other hand, however, that system would hardly seem capable of giving a truthful picture of the economic reality in each and every individual situation. It would thus lead, in all likelihood, to frequent errors, often to the detriment of the taxpayers. Such a system would thus go beyond what is necessary to ensure collection of all VAT due and prevent evasion or avoidance.
· However, in the light of the elements included in the case file, that does not seem to be the case of the national legislation at issue in the main proceedings. I see two main reasons why that legislation does not appear problematic from the angle of proportionality.
· First, the national legislation at issue, as interpreted by the Italian courts, implies that the sectoral studies only provide indicia of a possible anomaly in the declarations of a taxpayer. Therefore, a significant deviation from the results of those studies does not automatically lead to an adverse decision of the authorities. It may merely give rise to the opening of an inter partes procedure in order to establish the true economic situation of a taxpayer. It is, accordingly, the review and ‘correction’ of those results in the light of the elements adduced by the taxpayer that permits the tax authorities to determine whether, in a specific case, there has been tax evasion or avoidance and to quantify the amount due.Importantly, the involvement of the taxpayer in question in the administrative procedure — for which he must be afforded adequate time to prepare his defence — is, according to national case-law, an essential procedural requirement for the lawfulness of the Tax Office’s assessment.
· Second, the divergence between the economic data declared by a taxpayer and those that might stem from the application of a sectoral study does not give rise to a legal presumption. Indeed, the application of the sectoral study to a specific situation may give rise only to a simple presumption (‘presunzione semplice’) within the meaning of Article 2729(1) of the Codice Civile (Italian Civil Code). According to that provision, the assessment of such presumptions is left to the ‘prudence of the judge’, who is to admit them only when they are ‘serious, precise and consistent’.
· Therefore, the application of the sectoral study to a specific situation does not produce a real shift in the burden of proof: it is still the Tax Office that has the onus of proving, to the requisite legal standard, any breach allegedly committed by a taxpayer. The application of the sectoral study does, however, give rise, for the taxpayer, to a burden of adducing evidence: he has to submit arguments and supporting documentation that may explain why his results diverge from those that could have normally been expected from a similar business. It is my understanding that the tax authority is to take those elements into account and, where unpersuaded, it must explain in its final assessment the reasons why. In case of ensuing litigation, it will be ultimately for the judge to freely assess the elements adduced by both parties, without being bound by any presumption.
· That said, it must be borne in mind that national rules that concern the collection of undeclared VAT constitute implementation of the provisions of the VAT Directive and, as such, must be interpreted and applied in conformity with the Charter of Fundamental Rights of the European Union (‘the Charter’).
· That aspect is, in my view, quite important in the case at hand. Indeed, legislation such as that at issue in the main proceedings does increase, in a not insignificant manner, the powers of the administration vis-à-vis the taxpayers. The administration is allowed, with respect to specific taxpayers, to make certain prima facie assumptions by having recourse to statistical and economic data that do not concern those taxpayers. To my mind, for such a system to be proportionate, strict compliance with Articles 47 (‘Right to an effective remedy and to a fair trial’) and 48 (‘Presumption of innocence and right of defence’) of the Charter is required.
· This means, first, that, before the tax authorities adopt a measure which will adversely affect a taxpayer, that person must be placed in a position in which he can effectively make known his views as regards the information on which the authorities intend to base their decision. That person should be given enough time to prepare his defence. Second, any assessment made by the tax authorities must be challengeable before a court that can review all questions of fact and law invoked by that person.
· In that regard, as far as the application of the sectoral study is concerned, I believe that a taxpayer must, in particular, be able to contest both the intrinsic correctness of the study and/or its relevance for the assessment of his specific situation (for example, because of elements taken or not taken into account in the study that may affect the estimates produced).
· In the light of that, a crucial issue is, obviously, the standard that a taxpayer is required to meet in order to satisfy his burden of adducing evidence and to rebut the simple presumption stemming from the application of the study. To my mind, that standard must be a function of the elements gathered by the tax office that support the results of the study: the more numerous and credible the elements, the higher the bar for the taxpayer to meet his burden, and vice versa.
· However, in this context it should not be overlooked that all businesses are not only subject to risks and uncertainties, but they may also be affected by largely fortuitous events. Not every downturn or negative result by a business can be easily predicted ex ante, and logically explained ex post (let alone proven to the requisite legal standard in court proceedings). To rebut a presumption deriving from the application of a sectoral study, a taxpayer may thus be compelled to prove negative facts (such as the absence or low number of taxable transactions in a given period) which, in certain circumstances, may prove a rather difficult exercise. The national court hearing the case must thus take that aspect into account when evaluating the arguments and evidence adduced by the taxpayer to challenge an assessment that relies, inter alia, on a study that is based on statistical and economic data.
· I thus take the view that national legislation such as that at issue in the main proceedings is not per se in breach of the principle of proportionality, provided it is applied in conformity with Articles 47 and 48 of the Charter.
2. Principle of fiscal neutrality
· As regards the principle of fiscal neutrality, I do not see any ground to consider national legislation such as that at issue in the main proceedings to be per se in breach of that principle, mainly for two reasons.
· On the one hand, nothing prevents a taxpayer who is subject to a tax assessment based on the application of a sectoral study from claiming deduction of all input VAT for which he has sufficient evidence. In other words, I do not see why the Tax Office’s capacity to establish and quantify undeclared VAT by means of, inter alia, presumptions stemming from sectoral studies would have an impact on the taxpayer’s right to deduct.
· At any rate, it stems from the abovementioned principles that the tax authorities are required to take a faithful picture of the taxpayer’s economic situation and — regardless of any penalty that may be imposed — they may not claim as unpaid tax more than what is actually due.
· On the other hand, I am also not convinced by the ‘pass-on’ argument raised in the order for reference. In the case of tax evasion or avoidance, the outstanding VAT claimed by the Tax Office constitutes the fraction of the consideration actually received by the taxpayer in the context of the undeclared transaction that corresponds to the applicable VAT rate.
· In any event, in a situation such as that in the main proceedings, a taxpayer responsible for fraud or evasion cannot invoke the principle of neutrality, comparing his situation to that of a taxpayer who has duly complied with his obligations under EU and national VAT rules. As the Court held in Maya Marinova, taxpayers who have committed tax evasion consisting, inter alia, in the concealment of taxable transactions and the resulting revenue are not in a situation comparable to that of taxpayers who comply with their obligations in relation to accounting, filing VAT returns and the payment of VAT. In those circumstances, the principle of fiscal neutrality cannot legitimately be invoked by a taxpayer who has intentionally participated in tax evasion and who has jeopardised the operation of the common system of VAT.
· Accordingly, I take the view that a system such as that laid down in the national legislation at issue is also not per se in breach of the principle of fiscal neutrality.
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