Case C‑332/15

Criminal proceedings

against

Giuseppe Astone

(Request for a preliminary ruling

from the Tribunale di Treviso)

‛Request for a preliminary ruling — Common system of value added tax — Directive 2006/112/EC — Articles 167, 168, 178 to 182, 193, 206, 242, 244, 250, 252 and 273 — Right to deduct VAT — Substantive requirements — Formal requirements — Limitation period — National provisions excluding the right to deduct where there is a failure to comply with the formal requirements — Tax evasion’

Summary — Judgment of the Court (Seventh Chamber), 28 July 2016

1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Jurisdiction of the national court — Interpretation of national law — Necessity of a question referred and relevance of the questions raised — Assessment by the national court

   (Art. 267 TFEU)

2. Harmonisation of fiscal legislation — Common system of value added tax — Deduction of input tax — National legislation laying down a limitation period for the submission of claims — Whether permissible — Conditions — Respect for the principles of equivalence and effectiveness

   (Council Directive 2006/112, Arts 167, 168, 178, 179, first para., 180 and 182)

3. Harmonisation of fiscal legislation — Common system of value added tax — Deduction of input tax — National legislation excluding the right to deduct where there has been a fraudulent failure to fulfil the formal requirements governing that right — Whether permissible — Infringement of the principle of fiscal neutrality — None

   (Council Directive 2006/112, Arts 168, 178, 179, 193, 206, 242, 244, 250, 252 and 273)

1.  See the text of the decision.

   (see para. 24)

2.  Articles 167, 168, 178, the first paragraph of Article 179, and Articles 180 and 182 of Council Directive 2006/112, on the common system of value added tax, must be interpreted as meaning that they do not preclude national legislation which provides for a limitation period for exercising the right to deduct, provided that the principles of equivalence and effectiveness are observed, which it is for the national court to ascertain.

   (see para. 39, operative part 1)

3.  Articles 168, 178, 179, 193, 206, 242, 244, 250, 252 and 273 of Directive 2006/112, on the common system of value added tax, must be interpreted as meaning that they do not preclude national legislation which allows the tax authorities to refuse a taxable person the right to deduct value added tax (VAT) when it is established that that person has fraudulently failed to fulfil most of the formal obligations incumbent upon him in order to be able to benefit from that right.

   In particular, the failure to file a VAT return, like to failure to keep accounting records, which would allow VAT to be applied and monitored by the tax authorities, and the failure to record the invoices issued and paid are liable to prevent the correct collection of the tax and, therefore, to compromise the proper functioning of the common system of VAT. Therefore, EU law does not prevent Member States from treating such infringements as amounting to tax evasion and from refusing to grant the right to deduct in such cases. In that regard, a refusal of the right to deduct in circumstances characterising the existence of tax evasion on the part of the taxable person seeking to benefit from that right cannot be considered contrary to the principle of fiscal neutrality, since that principle cannot legitimately be invoked by a taxable person who has intentionally participated in tax evasion and who has jeopardised the operation of the common system of VAT.

   (see paras 56, 58, 59, operative part 2)