Official Journal of the European Union

C 55/4

(Case C-502/07)

(VAT - Irregularities in the tax declaration submitted by a taxable person - Additional tax)

(2009/C 55/05)

Language of the case: Polish

Referring court

Parties to the main proceedings

Applicant: K-1 sp. z o.o.

Defendant: Dyrektor Izby Skarbowej w Bydgoszczy

Re:

Reference for a preliminary ruling — Naczelny Sąd Administracyjny (Poland) — Interpretation of paragraphs one and two of Article 2 of First 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 2, 10(1)(a), 10(2), 27(1) and 33 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 legislation imposing an additional tax liability where irregularities are established in the taxable person's VAT declaration

Operative part of the judgment

1.The common system of value added tax, as defined in the first and second paragraphs of Article 2 of First Council Directive 67/227/EEC of 11 April 1967 on the harmonisation of legislation of Member States concerning turnover taxes and in Articles 2 and 10(1)(a) and (2) 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, as amended by Council Directive 2004/66/EC of 26 April 2004, does not preclude a Member State from providing in its legislation for an administrative penalty which may be imposed on persons liable to value added tax, such as the ‘additional tax’ provided for in Article 109(5) and (6) of the Ustawa o podatku od towarów i usług (Law on the taxation of goods and services) of 11 March 2004.

2.Provisions such as those in Article 109(5) and (6) of the Law on the taxation of goods and services of 11 March 2004 do not constitute ‘special measures for derogation’ for preventing certain types of tax evasion or avoidance within the meaning of Article 27(1) of Sixth Directive 77/388, as amended.

3.Article 33 of Sixth Directive 77/388, as amended, does not preclude the maintenance of provisions such as those in Article 109(5) and (6) of the Law on the taxation of goods and services of 11 March 2004.

(1) OJ C 22, 26.1.2008.