Case C-138/12

Rusedespred OOD

v

Direktor na Direktsia ‘Obzhalvane I upravlenie na izpalnenieto’ — Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite

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

‛Taxation — VAT — Directive 2006/112/EC — Article 203 — Principle of fiscal neutrality — Refund to the supplier of tax paid where the recipient under an exempt transaction is refused a right of deduction’

Summary — Judgment of the Court (Fifth Chamber), 11 April 2013

1. Harmonisation of fiscal legislation — Common system of value added tax — Obligations of persons liable for the tax — Obligation to pay the tax entered on an invoice independently of any obligation to pay the tax on account of there being a transaction subject to value added tax

   (Council Directive 2006/112, Art. 203)

2. Harmonisation of fiscal legislation — Common system of value added tax — Principle of fiscal neutrality — Tax improperly invoiced — Refusal to refund the tax by the tax authority — Grounds for refusal — Invoice not corrected by the taxable person following the exempt supplies — Such a correction impossible on account of the recipient of the invoice being refused a right of deduction — Breach of the principle of fiscal neutrality

   (Council Directive 2006/112, Art. 203)

3. Acts of the institutions — Directives — Implementation by the Member States — Obligation to interpret national law in conformity with EU law

   (Art. 288(3) TFEU)

4. Harmonisation of fiscal legislation — Common system of value added tax — Principle of fiscal neutrality — Unconditional and sufficiently precise obligation placed on the Member States — Whether a taxable person may contest a provision of national law that makes the refund of tax invoiced in error conditional on the correction of the incorrect invoice

   (Council Directive 2006/112, Art. 203)

1.  See the text of the decision.

   (see para. 23)

2.  The principle of the neutrality of value added tax must be interpreted as precluding a tax authority from refusing, on the basis of a provision of national law intended to transpose Article 203 of Directive 2006/112 on the common system of value added tax, the supplier of an exempt supply the refund of value added tax invoiced in error to a customer on the ground that the supplier had not corrected the erroneous invoice, in circumstances where that authority had definitively refused the customer the right to deduct that value added tax and such definitive refusal results in the system for correction provided for under national law no longer being applicable.

   Where the issuer of the invoice has, in sufficient time, wholly eliminated the risk of any loss of tax revenue, the principle of the neutrality of value added tax requires that the tax which has been improperly invoiced can be corrected without such adjustment being made conditional by the Member States upon the good faith of the issuer of the relevant invoice. The adjustment cannot be dependent upon the discretion of the tax authority.

   (see paras 27, 39, operative part 1)

3.  See the text of the decision.

   (see para. 37)

4.  The principle of the neutrality of value added tax may be relied on by a taxable person in order to contest a provision of national law that makes the refund of value added tax invoiced in error conditional on the correction of the incorrect invoice, in circumstances where the right to deduct that value added tax has definitively been refused and such definitive refusal results in the system for correction provided for under national law no longer being applicable.

   (see paras 40, 41, operative part 2)

Case C-138/12

Rusedespred OOD

v

Direktor na Direktsia ‘Obzhalvane I upravlenie na izpalnenieto’ — Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite

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

‛Taxation — VAT — Directive 2006/112/EC — Article 203 — Principle of fiscal neutrality — Refund to the supplier of tax paid where the recipient under an exempt transaction is refused a right of deduction’

Summary — Judgment of the Court (Fifth Chamber), 11 April 2013

1. Harmonisation of fiscal legislation — Common system of value added tax — Obligations of persons liable for the tax — Obligation to pay the tax entered on an invoice independently of any obligation to pay the tax on account of there being a transaction subject to value added tax

   (Council Directive 2006/112, Art. 203)

2. Harmonisation of fiscal legislation — Common system of value added tax — Principle of fiscal neutrality — Tax improperly invoiced — Refusal to refund the tax by the tax authority — Grounds for refusal — Invoice not corrected by the taxable person following the exempt supplies — Such a correction impossible on account of the recipient of the invoice being refused a right of deduction — Breach of the principle of fiscal neutrality

   (Council Directive 2006/112, Art. 203)

3. Acts of the institutions — Directives — Implementation by the Member States — Obligation to interpret national law in conformity with EU law

   (Art. 288(3) TFEU)

4. Harmonisation of fiscal legislation — Common system of value added tax — Principle of fiscal neutrality — Unconditional and sufficiently precise obligation placed on the Member States — Whether a taxable person may contest a provision of national law that makes the refund of tax invoiced in error conditional on the correction of the incorrect invoice

   (Council Directive 2006/112, Art. 203)

1.  See the text of the decision.

   (see para. 23)

2.  The principle of the neutrality of value added tax must be interpreted as precluding a tax authority from refusing, on the basis of a provision of national law intended to transpose Article 203 of Directive 2006/112 on the common system of value added tax, the supplier of an exempt supply the refund of value added tax invoiced in error to a customer on the ground that the supplier had not corrected the erroneous invoice, in circumstances where that authority had definitively refused the customer the right to deduct that value added tax and such definitive refusal results in the system for correction provided for under national law no longer being applicable.

   Where the issuer of the invoice has, in sufficient time, wholly eliminated the risk of any loss of tax revenue, the principle of the neutrality of value added tax requires that the tax which has been improperly invoiced can be corrected without such adjustment being made conditional by the Member States upon the good faith of the issuer of the relevant invoice. The adjustment cannot be dependent upon the discretion of the tax authority.

   (see paras 27, 39, operative part 1)

3.  See the text of the decision.

   (see para. 37)

4.  The principle of the neutrality of value added tax may be relied on by a taxable person in order to contest a provision of national law that makes the refund of value added tax invoiced in error conditional on the correction of the incorrect invoice, in circumstances where the right to deduct that value added tax has definitively been refused and such definitive refusal results in the system for correction provided for under national law no longer being applicable.

   (see paras 40, 41, operative part 2)