22.5.2010

Official Journal of the European Union

C 134/20

(Case C-107/10)

2010/C 134/30

Language of the case: Bulgarian

Referring court

Parties to the main proceedings

Applicant: Enel Maritsa Iztok 3

Defendant: Director of the Office ‘Appeals and the Administration of Enforcement’ at the Central Administration of the National Revenue Agency

Questions referred

Must Article 18(4) of 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 and Article 183(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax be interpreted as meaning that in the circumstances of the main proceedings, they permit

1.that as a result of a statutory amendment with the objective of preventing tax evasion, the period for the refund of VAT is extended to the day of issue of a tax assessment notice because within 45 days of submission of the tax return a tax inspection has been commenced in respect of the person concerned, without interest being owed for this period on the amount subject to the refund, if at the same time the following circumstances exist:

(a)prior to this amendment, the period of 45 days laid down by statute for the tax refund had expired and interest had started to run on the amount to be refunded regardless of the commencement of the tax inspection,

(b)the tax inspection established that the amount of the tax refund declared was correct,

(c)the only legal possibility that the taxable person has to shorten this period consists of providing security in the form of money, government bonds or an unconditional and irrevocable bank guarantee for a certain duration in the sum of the amount subject to the refund?

2.that the legislation provides for a period for the refund of VAT with a duration of 45 days from the day of submission of the tax return for this tax and the legal possibility of suspending that period and subsequently also extending it as a result of a tax inspection ordered during this period, when the tax period for calculating this tax comprises one month?

3.that a refund of VAT is made by means of a tax assessment notice, in which the amount subject to a refund is set off against VAT debts assessed by the same notice and against other tax debts and State claims for various tax periods and interest charged on those sums up to the date of issue of the tax assessment notice, if at the tax inspection it has been established that the amount of the tax refund declared was correct and at the same time the following circumstances exist:

(a)in the tax inspection procedure, the provision of provisional security in respect of the State’s future claims which might be established in the course of the procedure up to the issue of the tax assessment notice, has not been allowed,

(b)national legislation does not provide for setting off against claims of the State as a means of compulsory enforcement or as a measure for providing security,

(c)the periods for challenging and voluntarily paying the principal sums and interest which had been offset had not expired, because they had been assessed by means of the same tax assessment notice, and part of them had also been challenged before the court?

4.that the State, if the correctness of the amount of the tax refund declared in the tax return was established, carries out a set-off against tax debts assessed in that notice for periods before the day of submission of the return, and against interest on those debts, [on the day of issue of the tax assessment notice] rather than on the day of the tax return, whereas the State does not owe any interest during the period laid down by statute for the refund of the amount and charges interest on the offset taxes from the day of submission of the return to the issue of the tax assessment notice?