Case C‑159/17

Întreprinderea Individuală Dobre M. Marius

v

Ministerul Finanţelor Publice — A.N.A.F. — D.G.R.F.P. Galaţi — Serviciul Soluţionare Contestaţii
and
A.N.A.F — D.G.R.F.P. Galaţi — A.J.F.P. Constanţa — Serviciul Inspecţie Fiscală Persoane Fizice 2 Constanţa

(Request for a preliminary ruling from the Curtea de Apel Constanţa)

(Reference for a preliminary ruling — Common system of value added tax (VAT) — Directive 2006/112/EC — Revocation of identification for VAT purposes — Obligation to pay VAT collected in the period during which the VAT identification number is revoked — Non-recognition of the right to deduct VAT relating to purchases made during that period)

Summary — Judgment of the Court (Tenth Chamber), 7 March 2018

Harmonisation of fiscal legislation — Common system of value added tax — Deduction of input tax — Right to deduction — Conditions — Substantive requirements — Formal requirements — Taxpayer who has failed to fulfil those requirements thereby preventing the tax authority from establishing compliance with the substantive requirements or evasion — Penalty — Loss of the right to deduct — Lawfulness

(Council Directive 2006/112, Arts 167 to 169, 179, 213(1), 214(1), and 273, as amended by Directive 2010/45)

Articles 167 to 169 and 179, Articles 213(1) and 214(1), and Article 273 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which allows tax authorities to refuse a taxable person the right to deduct value added tax when it is established that, on account of the alleged infringements committed by that person, the tax authorities could not have access to the information necessary to establish that the substantive requirements giving rise to the right to deduct input value added tax paid by that taxable person have been satisfied or that that person acted fraudulently in order to enjoy that right, a matter which it is for the referring court to ascertain.

In particular, failure to file a VAT return that would allow VAT to be applied and monitored by the tax authorities is 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 such infringements from being considered to amount to tax fraud and the right to deduct being refused in such a case (judgment of 28 July 2016, Astone, C‑332/15, EU:C:2016:614, paragraph 56).

(see paras 41, 42, operative part)