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Document 61998CJ0110

Summary of the Judgment

Judgment of the Court of 21 March 2000.
Gabalfrisa SL and Others v Agencia Estatal de Administración Tributaria (AEAT).
Reference for a preliminary ruling: Tribunal Económico-Administrativo Regional de Cataluña - Spain.
Meaning of national court or tribunal for the purposes of Article 177 of the EC Treaty (now Article 234 EC) - Admissibility - Value added tax - Interpretation of Article 17 of Sixth Directive 77/388/EEC - Deduction of tax paid on inputs - Activities prior to carrying out economic transactions on a regular basis.
Joined cases C-110/98 to C-147/98.

Keywords
Summary

Keywords

1. Preliminary rulings - Reference to the Court - National court or tribunal within the meaning of Article 177 of the Treaty (now Article 234 EC) - Definition - Tribunales Económico-Administrativos with jurisdiction to hear fiscal complaints - Inclusion

(EC Treaty, Art. 177 (now Art. 234 EC))

2. Tax provisions - Harmonisation of laws - Turnover taxes - Common system of value added tax - Deduction of input tax - Activities prior to carrying out taxable transactions on a regular basis - Requirements - Infringement - Penalty - Forfeiture of the right to deduct or deferment of the exercise of that right - Unlawful

(Directive 77/388, Art. 17)

Summary

1. In order to determine whether a body making a reference is a court or tribunal for the purposes of Article 177 of the Treaty (now Article 234 EC), it is important to take account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent. The Tribunales Económico-Administrativos in Spain which have jurisdiction to hear fiscal complaints satisfy those criteria.

( see paras 33, 41 )

2. Article 17 of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes precludes national legislation which makes the exercise of the right to deduct value added tax paid by a taxable person liable thereto before he starts regularly carrying out taxable transactions conditional upon the fulfilment of certain requirements such as the submission of an express request to that effect before the tax concerned becomes due and compliance with a time-limit of one year between that submission and the actual commencement of taxable transactions, and which penalises infringement of those requirements by forfeiture of the right to deduct or deferment of the exercise of that right until the time at which taxable transactions actually begin to be carried out on a regular basis.

( see para. 55 and operative part )

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