23.3.2013

Official Journal of the European Union

C 86/5

(Case C-642/11) (<span class="super">1</span>)

(Taxation - VAT - Directive 2006/112/EC - Principle of fiscal neutrality - Right of deduction - Refusal - Article 203 - Entry of the VAT on the invoice - Chargeability - Existence of a taxable transaction - Identical determination in respect of the issuer of the invoice and its recipient - Necessity)

2013/C 86/08

Language of the case: Bulgarian

Referring court

Parties to the main proceedings

Claimant: Stroy trans EOOD

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

Re:

Request for a preliminary ruling — Administrativen sad Varna — Interpretation of Article 203 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — Right to deduct input VAT — Tax payable owing to its being entered on the invoice despite the absence of supply or payment of the subject-matter of the invoice — Proof of actual supply of goods — No adjustment of the tax in the revised assessment relating to the taxable person’s direct supplier

Operative part of the judgment

Article 203 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that:

—the value added tax entered by a person on an invoice is payable by him regardless of whether a taxable transaction actually exists;

—it cannot be inferred from the mere fact that the tax authorities did not correct, in a tax adjustment notice addressed to the issuer of that invoice, the value added tax declared by the latter that those authorities have acknowledged that the invoice corresponded to an actual taxable transaction.

The principles of fiscal neutrality, proportionality and the protection of legitimate expectations must be interpreted as not precluding the recipient of an invoice from being refused the right to deduct input value added tax because there is no actual taxable transaction even though, in the tax adjustment notice addressed to the issuer of that invoice, the value added tax declared by the latter was not adjusted. However, if, in the light of fraud or irregularities, committed by the issuer of the invoice or upstream of the transaction relied upon as the basis for the right of deduction, that transaction is considered not to have been actually carried out, it must be established, on the basis of objective factors and without requiring of the recipient of the invoice checks which are not his responsibility, that he knew or should have known that that transaction was connected with value added tax fraud, a matter which it is for the referring court to determine.

* Language of the case: Bulgarian.

(1) OJ C 80, 17.3.2012.