Keywords
Summary

Keywords

Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Transitional arrangements for the taxation of trade between Member States

(Council Directive 77/388, Arts 17(2) and (3), and 28b(A)(2))

Summary

Articles 17(2) and (3) and 28b(A)(2) of Sixth Council Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, as amended by Directive 92/111, must be interpreted as meaning that a taxable person coming within the situation referred to in the first subparagraph of Article 28b(A)(2) does not have the right immediately to deduct the input value added tax charged on an intra-Community acquisition.

Since the goods taxed as intra-Community acquisitions deemed to have been made in the Member State which issued the identification number, in accordance with the first subparagraph of Article 28b(A)(2) of the Sixth Directive, did not actually enter that Member State, those transactions cannot be regarded as giving rise to a ‘right to deduct’ within the meaning of Article 17 of the Sixth Directive, which makes deduction of the input value added tax charged on intermediary goods and services acquired by a taxable person, inter alia within the context of intra-Community acquisitions, subject to the condition that the goods and services thus acquired are to be used for the purpose of the taxable person’s taxable transactions. Consequently, such intra-Community acquisitions cannot benefit from the general regime of deduction set out in that article.

In that regard, the general regime for the deduction of tax, as set out in Article 17 of the Sixth Directive, is not intended to replace, in such a situation, the specific regime referred to in the second subparagraph of Article 28b(A)(2) of that directive, which is based on the mechanism of reducing the taxable amount in order to make it possible to correct the double taxation.

(see paras 40-43, 45, operative part)