ECJ C-48/20 – P vs. PL – Questions – Input VAT recovery relating to unduly invoiced VAT

The Central Database of Administrative Court Decisions shows that Poland’s Supreme Administrative Court has raised some questions to the ECJ.
As this case referes to UAB “P, it seems that this case is referred to on Curia as C-48/20.

Article in the EU VAT Directive

Article 203 of Council Directive 2006/112/EC

Article 203
VAT shall be payable by any person who enters the VAT on an invoice.

Facts

The authority challenged the Company’s right to deduct input tax resulting from invoices issued to it for the purchase of fuel by service stations: K. sp.j., M. sp. z o.o., PHU J. S., PPHU A. R., P. S.A. S.K.A. and OU W.

Moreover, the Company recognized that it issued and marketed invoices in which it included fictitious sales of fuel to Lithuanian companies. In the opinion of the authority, the Company was neither a buyer nor a supplier of fuel. However, its actual activity consisted in financing (crediting) the purchase of diesel oil at petrol stations by Lithuanian companies using the so-called “OU W.”.

Questions

Must Article 203 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax … ¹ [,as amended,] and the principle of proportionality be interpreted as precluding the application, in a situation such as that in the main proceedings, of a national provision such as Article 108(1) of the Ustawa z dnia 11 marca 2004 r. o podatku od towarów i usług (Law of 11 March 2004 on [the] tax on goods and services) … ² to invoices with VAT incorrectly indicated that were issued by a taxable person acting in good faith, if:

– the taxable person’s actions did not involve tax fraud, but resulted from an erroneous interpretation of the law by the parties to the transaction, based on an interpretation given by the tax authorities and a common practice in that respect at the time of the transaction, which incorrectly assumed that the issuer of the invoice was supplying goods when in fact it was providing a VAT-exempt financial intermediation service; and

– the recipient of the invoice with the VAT incorrectly indicated would have been entitled to claim a VAT refund if the transaction had been correctly invoiced by a taxable person who was actually supplying the recipient with goods?

AG Opinion

Decision

Personal comments/VATupdate

Source