Mar 21

 

CJEU expected to deliver judgment in Case C-533/16, Volkswagen (VAT – Right of deduction refused due to expiry of limitation period)

 

Questions referred for a preliminary ruling:

1  Must Directive 2008/9 and the right to a tax refund be interpreted to the effect that the cumulative satisfaction of two conditions is required to exercise the right to a VAT refund, namely:

(i)     the supply of the goods or service and

(ii)    the inclusion of VAT on the invoice by the supplier?

In other words, is it possible for a taxable person who has not been charged VAT on an invoice to claim a tax refund?

2  Is it in accordance with the principle of proportionality or VAT fiscal neutrality for the time limit for the tax refund to be calculated from a point at which not all the substantive law conditions required to exercise the right to a tax refund were satisfied?

3  Are Articles 167 and 178(a) of the VAT Directive, in the light of the principle of fiscal neutrality, to be interpreted to the effect that, in circumstances such as those of the present case, and assuming that the other substantive law and procedural law conditions required to claim a right to a tax deduction are satisfied, they preclude an approach by the tax authorities which refuses the taxable person the right, claimed within the time limit under Directive 2008/9, to be refunded VAT which was charged to it by the supplier on the invoice and [paid] by the supplier before the expiry of the limitation period for relying upon the right under national law?

4  Did the Slovak tax authorities, in the light of the principle of neutrality and the principle of proportionality, which are the fundamental principles of the common system of VAT, exceed the limits of what was necessary for achieving the objective defined by the VAT Directive when they refused the taxable person the right to a refund of the … tax [paid] on the ground that the limitation period laid down by national law for claiming a tax refund had expired, even though the taxable person could not exercise its right to a tax refund within that period and even though the tax was correctly collected and the risk of tax evasion or non-payment of the tax had been completed excluded?

5  May the principles of legal certainty, legitimate expectations and the right to good administration under Article 41 of the Charter of Fundamental Rights of the European Union be interpreted as precluding an interpretation of the national legislation under which, for the purposes of observance of the time limit for claiming a tax refund, the time of the decision of the administrative authority on the tax refund is decisive, and not the time at which the tax refund is claimed by the taxable person?

 

More information on the opinion in this case as delivered by Advocate General Campos Sánchez-Bordona on October 26, 2017 by can be found here

 

 

 

 

 

 

Mar 21

 

Opinion of the Advocate General expected to be delivered in Case C-5/17, DPAS Limited (VAT – The interpretation of Article 135(1)(d) of Council Directive 2006/112/EC)

 

Questions referred for a preliminary ruling:

In the light of Article 135(1)(d) of Council Directive 2006/112/EC (the Principal VAT Directive) and the interpretations of that provision given by the Court of Justice in AXA, Bookit II and NEC, the Upper Tribunal (Tax and Chancery Chamber) respectfully refers the following questions to the Court of Justice of the European Union for a preliminary ruling:

1  Is a service, such as that performed by the taxpayer in the present case, consisting of directing, pursuant to a direct debit mandate, that money is taken by direct debit from a patient’s bank account and passed by the taxpayer, after deduction of the taxpayer’s remuneration, to the patient’s dentist and insurance provider, an exempt supply of transfer or payment services within Article 135(1)(d) of the Principal VAT Directive?

2  In particular, do the decisions in Bookit II and NEC lead to the conclusion that the exemption from VAT in Article 135(1)(d) is not applicable to a service, such as that performed by the taxpayer in the present case, which does not involve the taxpayer itself debiting or crediting any accounts over which it has control but which, where a transfer of funds results, is essential to that transfer? Or does the decision in AXA lead to the contrary conclusion?

3  What are the relevant principles to be applied for determining whether or not a service such as that performed by the taxpayer in the present case falls within the scope of ‘debt collection’ within Article 135(1)(d)? In particular, if (as the Court decided in AXA in relation to the same or a very similar service) such a service would constitute debt collection if provided to the person to whom the payment is due (i.e. the dentists in the present case and in AXA), does that service also constitute debt collection if such a service is provided to the person from whom the payment is due (i.e. the patients in the present case)?

 

 

 

Mar 22

Opinion of the Advocate General expected to be delivered in Case C-648/16, Fontana (VAT – The application of VAT to the overall turnover established by extrapolation)

 

Question referred for a preliminary ruling:

Do Articles 113 and 114 TFEU and Council Directive 2006/112/EC 1 of 28 November 2006 on the common system of value added tax preclude the Italian domestic legislation in Articles 62 sexies (3) and 62 bis of Legislative Decree 331/1993 [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?

 

 

Mar 22

 

Opinion of the Advocate General expected to be delivered in Case C-108/17, Enteco Baltic (VAT – Exemptions on importation)

 

Questions referred for a preliminary ruling:

1  Is Article 143(2) of the VAT Directive 1 to be interpreted as prohibiting a tax authority of a Member State from refusing to apply the exemption provided for in Article 143(1)(d) of that directive solely because at the time of importation the goods were planned to be supplied to one VAT payer and therefore its VAT identification number was specified in the import declaration, but later, after a change in circumstances, the goods were transported to another taxable person (VAT payer) and the public authority was provided with full information about the identity of the actual purchaser?

2  In circumstances such as those of the present case, can Article 143(1)(d) of the VAT Directive be interpreted as meaning that documents that have not been disproved (e-AD [electronic administrative document] consignment notes and e-ROR [electronic report of receipt] confirmations) confirming transport of the goods from a tax warehouse in the territory of one Member State to a tax warehouse in another Member State may be regarded as sufficient proof of transportation of the goods to another Member State?

3  Is Article 143(1)(d) of the VAT Directive to be interpreted as prohibiting a tax authority of a Member State from refusing to apply the exemption provided for in that provision if the right of disposal was transferred to the purchaser of the goods not directly, but via the persons specified by it (transport undertakings/tax warehouses)?

4  Does an administrative practice conflict with the principle of neutrality of VAT and of the protection of legitimate expectations where under that practice the interpretation differs as to what is to be regarded as a transfer of the right of disposal, and as to what evidence must be submitted to substantiate such a transfer, according to whether Article 167 or Article 143(1)(d) of the VAT Directive is applicable?

5  Does the scope of the principle of good faith in relation to the levying of VAT also encompass the right of persons to exemption from import VAT (under Article 143(1)(d) of the VAT Directive) in cases such as that in the main proceedings, that is to say, where the customs office denies the right of a taxable person to exemption from import VAT on the basis that the conditions for further supply of goods within the European Union (Article 138 of the VAT Directive) were not complied with?

6  Is Article 143(1)(d) of the VAT Directive to be interpreted as prohibiting an administrative practice of Member States under which the assumption that (i) the right of disposal was not transferred to a specific contractual partner and (ii) that the taxpayer knew or could have known about possible VAT fraud committed by the contractual partner is based on the fact that the undertaking communicated with the contractual partners by electronic means of communication and that it was established when the investigation was carried out by a tax authority that the contractual partners did not operate at the addresses specified and did not declare the VAT on the transactions with the taxable person?

7  Is Article 143(1)(d) of the VAT Directive to be interpreted as meaning that, although the duty to substantiate the right to a tax exemption falls on the taxpayer, this does not, however, mean that the competent public authority deciding the issue of transfer of the right of disposal has no obligation to collect information accessible only to public authorities?

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The schedule above merely contains a selection of events/important dates taking place during the week and should in no way be considered to be complete. It is very well possible that other important events take place during the week that were not included in the schedule above. It is your own responsibility to research other sources to review whether other important events take place that are not included in the schedule above.

 

Furthermore the schedule above is solely based on the information provided as by the respective authorities when the schedule above was drafted. It is your own responsibility to check whether the information included in the schedule above is complete, accurate and correct. International Tax Plaza and/or its owners do not accept any liability if the information provided in the schedule above is incomplete, not accurate and/or incorrect.

 

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