15.8.2009

Official Journal of the European Union

C 193/6

Reference for a preliminary ruling from the Naczelny Sąd Administracyjny (Republic of Poland), lodged on 28 May 2009 — Dyrektor Izby Skarbowej w Białymstoku v ‘Profaktor’ Kulesza, Frankowski, Trzaska spółka jawna w Białymstoku

(Case C-188/09)

2009/C 193/06

Language of the case: Polish

Referring court

Parties to the main proceedings

Applicant: Dyrektor Izby Skarbowej w Białymstoku

Respondent: ‘Profaktor’ Kulesza, Frankowski, Trzaska spółka jawna w Białymstoku

Questions referred

1.Do the first and second paragraphs of Article 2 of First Council Directive 67/227/EEC (1) of 11 April 1967 on the harmonisation of legislation of Member States concerning turnover taxes, in conjunction with Articles 2, 10(1) and (2) and 17(1) and (2) of Sixth Council Directive 77/388/EEC (2) 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, rule out the possibility of introducing temporary forfeiture of the right to reduce the amount of tax due by an amount equivalent to 30 % of the input tax on the acquisition of goods and services in relation to taxable persons who effect sales to natural persons not engaged in commercial activities, and to persons engaged in commercial activities in the form of individual agricultural holdings, and who fail to fulfil the obligation to keep records of turnover and amounts of tax due by using cash registers, pursuant to Article 111(2) of the Ustawa o Podatku od Towarów i Usług (Law on the tax on goods and services) of 11 March 2004 (Dziennik Ustaw No 54, item 535, as subsequently amended), in conjunction with Article 111(1) thereof?

2.Can ‘special measures’ within the terms of Article 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, consist, regard being had to their character and purpose, in a temporary restriction of the scope of a taxable person’s right to reduce tax referred to in Article 111(2) of the Ustawa o Podatku od Towarów i Usług of 11 March 2004 (Dziennik Ustaw No 54, item 535, as subsequently amended), in conjunction with Article 111(1) thereof, in relation to taxable persons who fail to fulfil the obligation to keep records of turnover and amounts of tax by using cash registers, with the result that the introduction thereof requires compliance with the procedure set out in Article 27(2) to (4) of the abovementioned Sixth Council Directive of 17 May 1977?

3.Does the right of a Member State referred to in Article 33(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, encompass the right to impose a sanction on taxable persons who fail to fulfil the obligation to keep records of turnover and amounts of tax by using cash registers in the form of temporary forfeiture of the right to reduce the amount of tax due by an amount equivalent to 30 % of the input tax on the acquisition of goods and services referred to in Article 111(2) of the Ustawa o Podatku od Towarów i Usług of 11 March 2004 (Dziennik Ustaw No 54, item 535, as subsequently amended), in conjunction with Article 111(1) thereof?

(1) OJ, English Special Edition 1967, p. 14.

(2) OJ 1977 L 145, p. 1.