11.10.2008

Official Journal of the European Union

C 260/3

(Case C-25/07)

(VAT - Directives 67/227/EEC and 77/388/EEC - National legislation determining conditions for repayment of excess VAT - Principles of tax neutrality and proportionality - Special derogating measures)

(2008/C 260/04)

Language of the case: Polish

Referring court

Parties to the main proceedings

Applicant: Alicja Sosnowska

Defendant: Dyrektor Izby Skarbowej we Wrocławiu Ośrodek Zamiejscowy w Wałbrzychu

Re:

Reference for a preliminary ruling — Wojewódzki Sąd Administracyjny we Wrocławiu — Interpretation of the third paragraph of Article 5 EC, Article 2 of Council Directive 67/227/EEC of 11 April 1967 on the harmonisation of legislation of Member States concerning turnover taxes (OJ, English Special Edition, 1967, p. 14), and Articles 18(4) and 27(1) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — National VAT legislation laying down, in relation to the period for refunding overpayments, less favourable rules for taxpayers beginning to carry out taxable operations and registered as taxpayers making intra-Community supplies — Principles of fiscal neutrality and proportionality

Operative part of the judgment

1.Article 18(4) of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 2005/92/EC of 2 December 2005, and the principle of proportionality preclude national legislation, such as that at issue in the main proceedings, which, in order to allow investigations required to prevent tax evasion and avoidance, extends from 60 to 180 days, as from the date of submission of the taxable person's VAT return, the period available to the national tax office for repayment of excess VAT to a category of taxable persons, unless those persons lodge a security deposit to a value of PLN 250 000;

2.Provisions such as those at issue in the main proceedings do not constitute ‘special measures for derogation’ intended to prevent certain types of tax evasion or avoidance within the meaning of Article 27(1) of the Sixth Directive 77/388, as amended by Directive 2005/92.

(1) OJ C 69, 24.3.2008.