Case C-259/12

Teritorialna direktsia na Natsionalnata agentsia za prihodite — Plovdiv

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Rodopi-M 91 OOD

(Request for a preliminary ruling from the Administrativen sad Plovdiv)

‛Taxation — VAT — Directive 2006/112/EC — Principles of fiscal neutrality and proportionality — Belated recording in the accounts and declaration of the cancellation of an invoice — Remedying of the omission — Payment of the tax — State budget — No harm suffered — Administrative penalty’

Summary — Judgment of the Court (Eighth Chamber), 20 June 2013

1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Clearly irrelevant questions and hypothetical questions put in a context not permitting a useful answer — Questions bearing no relation to the subject-matter of the main proceedings

   (Art. 267 TFEU)

2. Member States — Retained powers — Field of penalties relating to value added tax — Obligation to exercise that power in accordance with European Union law and its general principles

3. Harmonisation of fiscal legislation — Common system of value added tax — Principle of fiscal neutrality — Scope — Penalty for delay prescribed by a Member State and imposed upon a taxable person who has not complied with the obligation to record matters in the accounts — Remedying of the omission — Payment of the tax — Lawfulness — Assessment of certain circumstances by the national court in the light of Articles 242 and 273 of Directive 2006/112 and in the light of the principle of proportionality

   (Council Directive 2006/112, Arts 242 and 273)

1.  See the text of the decision.

   (see para. 27)

2.  See the text of the decision.

   (see para. 31)

3.  The principle of fiscal neutrality does not preclude the tax authorities of a Member State from imposing upon a taxable person who has not fulfilled within the period prescribed by national legislation his obligation to record in the accounts and to declare matters affecting the calculation of the value added tax for which he is liable a fine equal to the amount of the value added tax not paid within that period where the taxable person has subsequently remedied the omission and paid all the tax due, together with interest. It is for the national court to determine, in view of Articles 242 and 273 of Directive 2006/112 on the common system of value added tax, whether in the light of the circumstances of the main proceedings – in particular the period within which the irregularity was rectified, the seriousness of that irregularity, and the presence of any evasion or any circumvention of the applicable legislation that is attributable to the taxable person – the amount of the penalty imposed goes beyond what is necessary to attain the objectives of ensuring the correct collection of tax and preventing evasion.

   European Union law cannot be relied on for abusive or fraudulent ends. Nevertheless, late payment of tax cannot, per se, be equated with evasion.

   (see paras 41-43, operative part)