Source: minbuza.nl
Unofficial translation/summary:
- At the Romanian company CF SRL, a tax audit was carried out by the tax inspection service.
- CF had been denied access to the entire administrative file during the administrative phase.
- In addition, CF has been accused of having carried out fictitious commercial transactions with two suppliers.
- The tax authorities want to hold CF liable for this tax fraud.
- They argue that the tax fraud is evidenced by the fact that CF is unable to provide other evidence in addition to the invoice and that the suppliers involved were subject to income tax for micro-enterprises, while CF was subject to CIT.
- CF argues that, according to the case law of the Court of Justice concerning the theory of the innocent party, it cannot be held liable for tax fraud by its suppliers.
- CF also argues that, according to the case-law of the Court, there is no disadvantage for the State treasury since its suppliers have made use of the legal option to choose a tax scheme other than that which it has chosen itself.
Questions:
- Can a tax administrative act adopted with regard to a private individual be and must be annulled, having regard to the principle of the rights of the defense as defined by the case-law of the Court (Solvay, Sopropé and Ispas), if the private individual had access to the information on the basis of which the tax administrative act concerning him was adopted, despite the fact that this act refers to some information in the administrative file?
- Do the principles of neutrality, proportionality and equivalence prevent the exercise of the right to deduct VAT and CIT if a company which has always fulfilled all its tax obligations is not allowed to exercise the right to deduct CIT due to the behavior of suppliers that are considered unlawful on the basis of data such as the lack of personnel and the lack of means of transport, while the tax authority has not taken any steps to examine the liability of their respective suppliers?
- Is a national practice according to which the exercise of the right to deduct VAT and CIT is conditional on the taxpayer also possessing other supporting documents in addition to the invoice, such as a quotation or progress report, while these additional supporting documents are national tax rules have not been laid down clearly and specifically, compatible with EU law?
- In the light of the judgment in WebMindLicenses, can tax fraud be deemed to exist if a taxable person acquires goods and services from a taxable person using a tax scheme other than that of the former taxable person?
Cited (recent) case law: C-255/02; C-349/07; C-482/10; C-109/10 P; C-324/11; C-18/13; C-129/13; C-277/14; C-419/14; C-298/16.
