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Case C-424/12: Judgment of the Court (Second Chamber) of 6 February 2014 (request for a preliminary ruling from the Curtea de Apel Oradea — Romania) — SC Fatorie SRL v Direcția Generală a Finanțelor Publice Bihor (Request for a preliminary ruling — VAT — Directive 2006/112/EC — Reverse charge procedure — Right to deduct — Payment of the tax to the service supplier — Omission of mandatory particulars — Payment of VAT not due — Loss of the right to deduct — Principle of fiscal neutrality — Principle of legal certainty)
ECLI:EU:UNKNOWN:62012CA0424
62012CA0424
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29.3.2014
Official Journal of the European Union
C 93/11
(Case C-424/12) (<span class="super">1</span>)
(Request for a preliminary ruling - VAT - Directive 2006/112/EC - Reverse charge procedure - Right to deduct - Payment of the tax to the service supplier - Omission of mandatory particulars - Payment of VAT not due - Loss of the right to deduct - Principle of fiscal neutrality - Principle of legal certainty)
2014/C 93/17
Language of the case: Romanian
Referring court
Parties to the main proceedings
Applicant: SC Fatorie SRL
Defendant: Direcția Generală a Finanțelor Publice Bihor
Re:
Reference for a preliminary ruling — Curtea de Apel Oradea — Interpretation of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — Loss of the right to deduct VAT on the grounds that there was no mention in the invoice of the application of the reverse charge regime — Principle of legal certainty — Decision ordering payment of the amount of VAT wrongly deducted and of interest and of default penalties after an irrevocable decision recognising the right to deduct — Principle of fiscal neutrality — Payment of the VAT incorrectly indicated in an invoice by a third party — No steps taken by the tax authorities with a view to correction of the invoice which it is impossible to put in order ex post.
Operative part of the judgment
1.In a transaction subject to the reverse charge regime, in circumstances such as those in the main proceedings, Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax and the principle of fiscal neutrality do not preclude the recipient of the services from being deprived of the right to deduct the value added tax which he paid when that tax was not due to the service supplier on the basis of an incorrectly drawn up invoice, even where the correction of that error is impossible because that supplier is insolvent;
2.The principle of legal certainty does not preclude an administrative practice of the national tax authorities whereby, within a limitation period, they revoke a decision by which they granted the taxable person the right to deduct value added tax and then, following a fresh investigation, order him to pay that tax together with default interest.
(<span class="super">1</span>) OJ C 379, 8.12.2012.