Source:
JUDGMENT OF 12 April 2018
The dispute in the main proceedings and the questions referred for a preliminary ruling
20 During the period from February 2008 to May 2010, Biosafe sold to Flexipiso, which is liable to VAT, rubber granules manufactured from recycled tyres worth EUR 664 538.77 in total, on which Biosafe applied VAT at a reduced rate of 5%.
21 Following a tax inspection in 2011, relating to the tax years 2008 to 2010, the Portuguese tax authorities found that the standard VAT rate of 21% should have been applied and issued revised VAT assessments amounting to EUR 100 906.50 in total.
22 Biosafe paid that amount and claimed reimbursement from Flexipiso by sending debit notes to that undertaking. Flexipiso refused to pay that additional VAT on the ground that, in particular, it could not make a deduction because the period of four years laid down by Article 98(2) of the CIVA had expired, in respect of the transactions carried out up to 24 October 2008, before receipt of the debit notes of 24 October 2012, and that it was not for it to bear the consequences of an error for which Biosafe was solely responsible.
23 Following that refusal, Biosafe brought an action seeking an order that Flexipiso reimburse it for the amount that it had paid, together with interest for late payment. That action was rejected by the court of first instance and the appeal court which found that, although there was an obligation to pass on the VAT, the purchaser of goods could be required to pay that tax only if the invoices or equivalent documents were issued in time for him to make the deduction of that tax. Those courts took the view that, with regard to the debit notes received by Flexipiso more than four years after the initial invoices were issued, Biosafe could not pass on the VAT relating to those invoices to Flexipiso as the latter no longer had the right to deduct VAT and as it was clear that the error regarding the applicable tax rate was attributable to Biosafe.
Decision ECJ
Articles 63, 167, 168, 178 to 180, 182 and 219 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, and also the principle of fiscal neutrality, must be interpreted as precluding legislation of a Member State pursuant to which, in circumstances such as those at issue in the main proceedings in which, following a tax adjustment, additional value added tax (VAT) was paid to the State and was the subject of documents rectifying the initial invoices several years after the supply of the goods in question, the right to deduct VAT is to be refused on the ground that the period laid down by that legislation for the exercise of that right started to run from the date of issue of those initial invoices and had expired.
Newsletters
