Joined Cases C-80/11 and C-142/11

Mahagében Kft

v

Nemzeti Adó- és Vámhivatal Dél-dunántúli Regionális Adó Főigazgatósága (C-80/11) and Péter Dávid v Nemzeti Adó- és Vámhivatal Észak-alföldi Regionális Adó Főigazgatósága (C-142/11)

(References for a preliminary ruling from the Baranya Megyei Bíróság and the Jász-Nagykun-Szolnok Megyei Bíróság)

‛Taxation — VAT — Sixth Directive — Directive 2006/112/EC — Right to deduct — Conditions governing the exercise of that right — Article 273 — National measures to combat fraud — Practice of the national tax authorities — Refusal of the right to deduct in the event of improper conduct on the part of the issuer of the invoice relating to the goods or services in respect of which the exercise of that right is sought — Burden of proof — Obligation of the taxable person to satisfy himself as to the propriety of the conduct of the issuer of that invoice and to provide proof thereof’

Summary of the Judgment

1. Tax provisions — Harmonisation of laws — Turnover taxes — Common system of value added tax — Deduction of input tax — National practice refusing a taxable person the right to deduct in the event of irregularities committed by the issuer of the invoice or one of his suppliers — Not permissible — Limits — Conditions

   (Council Directive 2006/112, Arts 167, 168(a), 178(a), 220(1), and 226)

2. Tax provisions — Harmonisation of laws — Turnover taxes — Common system of value added tax — Deduction of input tax — Obligations of the taxable person — National practice refusing a taxable person the right to deduct in the event of irregularities committed by the issuer of the invoice — Refusal rejected notwithstanding fulfilment of substantive conditions for the right to deduct and in the absence of material justifying the suspicion that irregularities or fraud have been committed by the issuer — Not permissible

   (Council Directive 2006/112, Arts 167, 168(a), 178(a), and 273)

1.  Articles 167, 168(a), 178(a), 220(1) and 226 of Directive 2006/112 on the common system of value added tax must be interpreted as precluding a national practice whereby the tax authority refuses a taxable person the right to deduct, from the value added tax which he is liable to pay, the amount of the value added tax due or paid in respect of the services supplied to him, on the ground that the issuer of the invoice relating to those services, or one of his suppliers, acted improperly, without that authority establishing, on the basis of objective evidence, that the taxable person concerned knew, or ought to have known, that the transaction relied on as a basis for the right to deduct was connected with fraud committed by the issuer of the invoice or by another trader acting earlier in the chain of supply.

   (see para. 50, operative part 1)

2.  Articles 167, 168(a), 178(a) and 273 of Directive 2006/112 on the common system of value added tax must be interpreted as precluding a national practice whereby the tax authority refuses the right to deduct on the ground that the taxable person did not satisfy himself that the issuer of the invoice relating to the goods in respect of which the exercise of the right to deduct is sought had the status of a taxable person, that he was in possession of the goods in question and was in a position to supply them, and that he had satisfied his obligations as regards declaration and payment of value added tax, or on the ground that, in addition to that invoice, that taxable person is not in possession of other documents capable of demonstrating that those conditions were fulfilled, although the substantive and formal conditions laid down by Directive 2006/112 for exercising the right to deduct were fulfilled and the taxable person is not in possession of any material justifying the suspicion that irregularities or fraud have been committed within that invoice issuer’s sphere of activity.

   (see para. 66, operative part 2)