Request for a preliminary ruling from the Wojewódzki Sąd Administracyjny w Gliwicach (Poland) lodged on 4 December 2019 — A. v Dyrektor Krajowej Informacji Skarbowej
Article in the EU VAT Directive
167 en 178
Facts
A Polish referral asking whether Article 167 of the VAT Directive, in conjunction with Article 178, is to be interpreted as precluding national law which makes the exercise of the right to deduct VAT in the same accounting period as that in which the tax due was payable on transactions constituting Intra-Community acquisitions of goods, subject to entry of the tax due on those transactions in the appropriate tax declaration? Whether Article 167 of the VAT Directive, in conjunction with Article 178, is to be interpreted as precluding national law which makes the exercise of the right to deduct VAT in the same accounting period as that in which the tax due was payable on transactions constituting Intra-Community acquisitions of goods, subject to entry of the tax due on those transactions in the appropriate tax declaration?
Question referred
Is Article 167 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (as amended), in conjunction with Article 178 thereof, to be interpreted as precluding national legislation which makes the exercise of the right to deduct input tax in the same accounting period as that in which the tax due was payable on the transactions constituting Community acquisitions of goods subject to entry of the tax due on those transactions in the appropriate tax declaration submitted within the mandatory period (in Poland, three months) following the end of the month in which the tax liability arose in relation to the goods and services acquired?
Source curia
The Polish order can be found here. Unofficial translation:
SENTENCE
The Voivodship Administrative Court in Gliwice, composed of: Chairman WSA Judge Bożena Suleja-Klimczyk, WSA Judge Dorota Kozłowska, WSA Assessor Monika Krywow (trial), Reporter Senior Court Secretary Marta Lewicka, after hearing the case on November 4, 2019 from complaint A in A. on the interpretation of the Director of the National Tax Information of […] No. […] regarding tax on goods and services, decides: 1. Pursuant to art. 267 of the Treaty on the Functioning of the European Union, refer the following question for a preliminary ruling to the Court of Justice of the European Union regarding the interpretation of EU law: Is art. 167 in relation from art. 178 of Directive 2006/112 / EC of the Council of 28 November 2006 on a common system of value added tax (Official Journal of the EU from 2006 No. L 347 p. 1 and subsequent, as amended). ) must be interpreted in such a way that it opposes national provisions which determine the exercise of the right to deduct input tax in the same accounting period in which the tax due on transactions constituting the Community acquisition of goods is subject to the tax due on such tax transactions in the relevant tax declaration, submitted within the deadline (in Poland 3 months) from the expiry of the month in which the tax obligation arose in relation to the goods and services purchased? 2. On the basis of art. 124 § 1 item 5 of the Act of 30 August 2002 Law on proceedings before administrative courts (i.e., Journal of Laws of 2018, item 1302, as amended), suspend court proceedings until the above question has been resolved. which determine the exercise of the right to deduct input tax in the same settlement period in which the tax due is payable in respect of transactions constituting the Community acquisition of goods, from the presentation of the tax due on such transactions in the relevant tax declaration, submitted within the deadline (in Poland 3 months) from the end of the month in which the tax obligation arose in respect of the goods and services purchased? 2. On the basis of art. 124 § 1 item 5 of the Act of 30 August 2002 Law on proceedings before administrative courts (i.e., Journal of Laws of 2018, item 1302, as amended), suspend court proceedings until the above question has been resolved. which determine the exercise of the right to deduct input tax in the same settlement period in which the tax due is payable in respect of transactions constituting the Community acquisition of goods, from the presentation of the tax due on such transactions in the relevant tax declaration, submitted within the deadline (in Poland 3 months) from the end of the month in which the tax obligation arose in respect of the goods and services purchased? 2. On the basis of art. 124 § 1 item 5 of the Act of 30 August 2002 Law on proceedings before administrative courts (i.e., Journal of Laws of 2018, item 1302, as amended), suspend court proceedings until the above question has been resolved. in which the tax due in relation to transactions constituting the Community acquisition of goods is subject to settlement of the tax due on such transactions in the relevant tax declaration, submitted within the deadline (in Poland 3 months) from the end of the month in which the purchased goods and services arose tax obligation? 2. On the basis of art. 124 § 1 item 5 of the Act of 30 August 2002 Law on proceedings before administrative courts (i.e., Journal of Laws of 2018, item 1302, as amended), suspend court proceedings until the above question has been resolved. in which the tax due in relation to transactions constituting the Community acquisition of goods is subject to settlement of the tax due on such transactions in the relevant tax declaration, submitted within the deadline (in Poland 3 months) from the end of the month in which the purchased goods and services arose tax obligation? 2. On the basis of art. 124 § 1 item 5 of the Act of 30 August 2002 Law on proceedings before administrative courts (i.e., Journal of Laws of 2018, item 1302, as amended), suspend court proceedings until the above question has been resolved. in which tax was imposed on the purchased goods and services? 2. On the basis of art. 124 § 1 item 5 of the Act of 30 August 2002 Law on proceedings before administrative courts (i.e., Journal of Laws of 2018, item 1302, as amended), suspend court proceedings until the above question has been resolved. in which tax was imposed on the purchased goods and services? 2. On the basis of art. 124 § 1 item 5 of the Act of 30 August 2002 Law on proceedings before administrative courts (i.e., Journal of Laws of 2018, item 1302, as amended), suspend court proceedings until the above question has been resolved.
SUBSTANTIATION
1. Legal framework.
1.1. EU law
Council Directive 2006/112 / EC of 28 November 2006 on a common system of value added tax (Official Journal of the EU from 2006 No. L 347 p. 1 and subsequent, as amended; hereinafter: Directive 112)
Art. 1 clause 2 of Directive 112
the principle of a common VAT system is to apply to goods and services a general consumption tax precisely proportional to the price of goods and services, regardless of the number of transactions that take place in the production and distribution process preceding the stage of charging that tax.
Art. 63 of Directive 112
An event giving rise to a tax obligation occurs – and VAT becomes chargeable – at the time the goods are delivered or services rendered;
Art. 167 of Directive 112
The right to deduct arises when the deductible tax becomes chargeable;
Art. 168 of Directive 112
If the goods and services are used for the purposes of taxable transactions of the taxpayer, the taxpayer is entitled, in the Member State in which he carries out these transactions, to deduct the following amounts from the amount of VAT which he is required to pay:
(a) VAT due or paid in that Member State on goods and services supplied to him or to be supplied to him by another taxable person;
c) VAT due on intra-Community acquisitions of goods in accordance with Article 2 clause 1 lit. b) point (i);
Art. 178 of Directive 112
In order to exercise the right of deduction, a taxable person must meet the following conditions:
a) to make the deduction referred to in art. 168 lit. a), for the supply of goods and services, must have an invoice drawn up in accordance with Article 220-236 and art. 238, 239 and 240;
c) to make the deduction referred to in art. 168 lit. c) regarding the intra-Community acquisition of goods, must be included in the VAT declaration provided for in Article 250 all data necessary to calculate the VAT due on account of the intra-Community acquisitions of goods he has made and to have an invoice drawn up in accordance with Chapter 3 of Title XI;
Art. 179 of Directive 112:
The taxpayer makes a deduction by deducting from the total amount of VAT due for a given accounting period, the amount of VAT giving in the same period the right to deduct applied in accordance with art. 178;
Art. 180 of Directive 112:
Member States may allow a taxable person to make a deduction which he has not made in accordance with Article 178 and 179;
Art. 181 of Directive 112:
Member States may authorize a taxable person who does not have an invoice drawn up in accordance with Title 3, Chapter 3, Sections 3-5 to make the deduction referred to in Article 168 lit. c) in relation to intra-Community acquisitions of goods;
art. 182
Member States shall determine the conditions and detailed rules for implementing Article 180 and 181;
Art. 273 of Directive 112
Member States are authorized to adopt provisions to ensure correct collection of tax and avoid tax evasion, provided that such provisions do not go beyond what is necessary to achieve those objectives or undermine the neutrality of VAT;
1.2. national regulations
1.2.2. the provisions of the Act of March 11, 2004 on tax on goods and services (i.e.
art. 86 ust. 1 uptu
to the extent that goods and services are used by the taxpayer to perform taxable activities, the taxpayer has the right to reduce the amount of tax due by the amount of input tax;
art. 86 ust. 10 uptu
the right to reduce the amount of tax due by the amount of input tax arises in the settlement for the period in which a tax obligation arose with respect to goods and services purchased or imported by the taxpayer;
86 ust. 13 uptu
if the taxpayer has not reduced the amount of tax due by the amount of input tax on the dates referred to in paragraph 10, 10d, 10e and 11, he may reduce the amount of tax due by correcting the tax declaration for the period in which the right to reduce the amount of tax due arose, but no later than within 5 years from the beginning of the year in which the law was established to reduce the amount of tax due, subject to paragraph 13a;
Art. 86 section 13a uptu if the taxpayer in relation to the intra-Community acquisition of goods, delivery of goods and provision of services for which, pursuant to art. 17 the taxpayer is the buyer of goods or services, he did not reduce the amount of tax due by the amount of input tax on the dates referred to in para. 10 and 11, he may reduce the amount of tax due by correcting the tax declaration for the period in which the right to reduce the amount of tax arose, but no later than within 5 years from the end of the year in which the right to reduce the amount of tax arose due;
1.2.2. wording of provisions until 31 December 2016;
art. 86 ust. 2 lit. b uptu
the right to reduce the amount of tax due by the amount of input tax in the cases referred to in paragraph 2 point 4 lit. c – arises in accordance with para. 10, provided that the taxpayer takes into account the amount of tax due on intra-Community acquisition of goods in the tax declaration in which he is obliged to settle this tax;
art. 86 ust. 10b pkt 3 uptua
the right to reduce the amount of tax due by the amount of input tax in the cases referred to in paragraph 2 point 4 lit. a, bid – is created in accordance with paragraph 10, provided that the taxpayer includes the amount of tax due on these transactions in the tax declaration in which he is obliged to settle this tax.
1.2.3. From January 1, 2017, the provisions of Art. 86 section 10b point 2 lit. b point 3 and the following sec. 10i to this recipe;
Art. 86 section 10b point 2 lit. b uptu (by analogy, Article 86 (16b) (3) of the Act)
The right to reduce the amount of tax due by the amount of input tax in the cases referred to in paragraph 2 point 4 lit. c – arises in accordance with para. 10, provided that the taxpayer: includes the amount of tax due on intra-Community acquisition of goods in the tax declaration in which he is obliged to settle this tax, no later than within 3 months from the end of the month in which the tax obligation arose in respect of the goods acquired ;
art. 86 ust. 10b pkt 3 uptu
The right to reduce the amount of tax due by the amount of input tax in the cases referred to in paragraph 2 point 4 lit. a, bid – is created in accordance with paragraph 10, provided that the taxpayer includes the amount of tax due on these transactions in the tax declaration in which he is obliged to settle this tax, no later than within 3 months from the end of the month in which
purchased goods or services a tax obligation arose;
art. 86 ust. 10i uptu
If the taxpayer includes the amount of tax due in the tax declaration, in which he is obliged to settle this tax, at a later date than specified in paragraph 10b point 2 lit. b point 3, the taxpayer may increase the amount of input tax in the settlement for the settlement period for which the deadline for submitting the tax declaration has not yet expired.
2. The facts of the case:
2.1. Proceedings before tax authorities.
2.1.1. In the submitted application for an interpretation of the provisions of the tax law in an individual case, Company A in the Netherlands (hereinafter referred to as the “Company” or “Applicant”) indicated, as part of its business operations, purchases, including: intra-Community acquisition of goods (hereinafter “WNT”) on Polish territory. The purchased goods are then used for operations subject to value added tax on the territory of the country. As part of the business, there have been and may arise in the future, cases in which the WNT tax due has not / will not be indicated by the Company in the relevant tax declaration (or correction of the declaration) submitted within 3 months from the end of the month, in which a tax obligation arose with respect to the purchased goods (she did or will do so after this deadline, by correcting the tax declaration). However, failure to indicate the due tax within the above deadline may result, among others, from delayed receipt of the invoice, incorrect classification of transactions on the part of the Applicant or a mistake of the person preparing the registers and declarations of value added tax. She indicated that she has the full right to deduct value added tax, and the subsequent (than 3 months) demonstration of the amount of tax due by correcting the correct declaration is not related to abuse of law or the desire to reduce the tax. from late receipt of an invoice, incorrect classification of transactions on the part of the Applicant or a mistake of a person preparing registers and declarations of value added tax. She indicated that she has the full right to deduct value added tax, and the subsequent (than 3 months) demonstration of the amount of tax due by correcting the correct declaration is not related to abuse of law or the desire to reduce the tax. from late receipt of the invoice, incorrect classification of transactions on the part of the Applicant or a mistake of the person preparing the registers and declarations of value added tax. She indicated that she has the full right to deduct value added tax, and the subsequent (than 3 months) demonstration of the amount of tax due by correcting the correct declaration is not related to abuse of law or the desire to reduce the tax.
In connection with the above, the Company asked the following question:
In the legal status in force since January 1, 2017, can the Company, in the actual state and future event indicated in the application, be able and will be able, as a result of the submitted correction of the VAT declaration, for the period in which the tax obligation arose, to deduct input tax on WNT in the same the accounting period in which the tax due was shown, even if the adjustment was or will be made later than within 3 months of the end of the month, a tax liability arose in respect of the goods purchased?
In the Company’s opinion, in the legal status applicable from 1 January 2017, the Company may and will be able, as a result of a submitted correction of the VAT declaration, for the period in which the tax obligation arose, to deduct input tax on WNT in the same settlement period in which the tax was shown due, even if the adjustment has been or will be made later than within 3 months of the end of the month, a tax liability has been incurred in respect of the goods purchased.
In the Applicant’s assessment, the requirement arising from art. 86 section 10b point 2 lit. b of the wording in force since 1 January 2017 is a requirement unknown under Directive 112 and therefore should not apply, and furthermore violates the principle of tax neutrality and the principle of proportionality.
2.1.2. The Director of the National Tax Information (hereinafter referred to as the “interpretative body”) disagreed with the above position and stated that the Company’s position presented in the application for an individual interpretation of the provisions of the tax law regarding tax on goods and services in the scope of the right to deduct input tax on intra-Community tax the purchase of goods is incorrect. According to the interpretative body, the introduced regulations are not contrary to Directive 112, in particular the principle of tax neutrality and the principle of proportionality, because they do not limit the taxpayer’s right to reduce the tax due, because it results from the very structure of value added tax. He also stressed that art. 178 of Directive 112 allowed the possibility for Member States to introduce certain formalities conditioning the right to deduct VAT, and in the opinion of the interpretative body this is a requirement under Art. 86 section 10b point 2 lit. b uptu, i.e. a 3-month period.
2.2. Proceedings before the administrative court.
2.2.1. In the complaint to the Provincial Administrative Court in Gliwice, requesting the annulment of the contested individual interpretation, the Company alleged, inter alia, violation of art. 86 section 10b point 2 of the Act due to its contradiction with art. 167 and art. 178 of Directive 112 and omission of the principle of tax neutrality expressed in art. 1 clause 2 of Directive 112, as well as the omission of the principle of proportionality resulting from art. 5 paragraph 4 of the Treaty on European Union (consolidated version, Official Journal of the EU 2012 No. C 326, p. 1 and following; hereinafter: “TFEU”).
2.2.2. In response to the complaint, the tax authority requested that the complaint be dismissed and upheld the position contained in the individual interpretation contested.
2.2.3. The court of first instance decided to task the Court of Justice of the European Union (hereinafter: the CJEU) the order for reference referred to in the operative part of the order and suspended the proceedings in the case.
3. Justification of the question referred for a preliminary ruling.
3.1. Admissibility of the question referred.
The Provincial Administrative Court in Gliwice (hereinafter: the court of first instance) is a national court whose rulings in accordance with Polish law are subject to appeal to the Supreme Administrative Court in Warsaw within the meaning of Art. 267 second sentence of the Treaty.
3.2. Justification of the question referred for a preliminary ruling.
3.2.1. In Poland, in accordance with the principle expressed in art. 86 section 1 of the Act (constituting the implementation of the principle of tax neutrality expressed in Article 1 (2) of Directive 112), the taxpayer to the extent that goods and services are used to perform taxable activities, the taxpayer referred to in Article 15, has the right to reduce the amount of tax due by the amount of input tax. The above law arises, as a rule, in the settlement for the period in which a tax obligation arose with respect to goods and services purchased or imported by the taxpayer (Article 86 (10) of the Upt). In the legal status in force until 31 December 2016, in the case of WNT it was created in accordance with para. 10, including provided that the taxpayer includes the amount of tax due on intra-Community acquisition of goods in the tax declaration, in which he is obliged to settle this tax (Article 86 (10b) (2) (b) of the Act). However, as a result of the amendment to the national legal order, the legislator introduced a limitation period – 3 months to exercise the right arising from art. 86 section 10 of the Act, which means that at present the possibility of using this regulation is conditioned by submitting a declaration within 3 months (Article 86 (10b) point 2 letter b of the Act, in the wording from January 1, 2017). If it is exceeded, the taxpayer must correct the previously submitted declaration (Article 86 (10g) of the Act) and at the same time may settle the tax due from WNT only on an ongoing basis (Article 86 (10) of the Act). The justification for the Sejm Print No. 965 of the Sejm of the 7th term shows that ” The introduction of the above clarification is justified by the occurrence of irregularities in the declaration by some intra-Community entities of the purchase of goods and other transactions in which, in principle, the tax due is equal to the input tax. The proposed change will allow more efficient control of areas such as intra-Community trade or domestic reverse charge in VAT “(http://orka.sejm.gov.pl/Druki8ka.nsf/0/7E779774C14B578BC125805A0048C94D/%24File/965.pdf). It is obvious that the wording of the previous provisions did not imply that there was any other time than the limitation period for correcting the declaration in this respect. It is therefore a new date. in which, in principle, the tax due is equal to the input tax. The proposed change will allow more efficient control of areas such as intra-Community trade or domestic reverse charge in VAT . It is obvious that the wording of the previous provisions did not imply that there was any other time than the limitation period for correcting the declaration in this respect. It is therefore a new date. that the wording of previously binding provisions did not imply that there was any other period than the limitation period for correcting the declaration in the above scope. It is therefore a new term. that the wording of previously binding provisions did not imply that there was any other period than the limitation period for correcting the declaration in the above scope. It is therefore a new term.
Meanwhile, in accordance with the judgment of the CJEU of May 2, 2019, reference number C-225/18 Grupa Lotos relating to the “standstill” clause Court. based on the case-law cited, he pointed out that the right to deduct provided for in Article 168 lit. (a) the Sixth Directive forms an integral part of the value added tax system and is in principle not subject to restriction. It is carried out directly in relation to the entire tax charged on transactions resulting in the calculation of tax, and the deduction system is intended to completely free the entrepreneur from the burden of VAT payable or paid in the course of all his business activities. According to the CJEU, the common system of value added tax thus guarantees, in terms of tax burden, the neutrality of any business activity, irrespective of its purpose or result, provided that it is in principle subject to that tax itself. It follows that, if a taxable person acting as such at the time of purchasing goods or services uses those goods or services for the purposes of his taxable transactions, he is entitled to deduct VAT payable or paid in respect of those goods or services. Secondly, the CJEU pointed out that case-law also shows that derogations from the right to deduct VAT are only permitted in the cases expressly provided for by the directives governing that tax. Nevertheless, the Court has already held that account must also be taken of the actual application of national provisions regarding exemptions to the right to deduct VAT and the effects that therefore have on taxpayers. (paragraphs 25-28,
In the light of the above judgment, the General Court hearing the present case has doubted whether it is possible to introduce regulations, such as those in the present case, as a new solution, as a rule, which were not previously known in national legislation. This is important because by introducing the above regulations, the Polish legislator expressed its opinion on the compliance of the proposed solutions with EU law. Meanwhile, the Sejm Print No. 965 shows that no opinion was consulted and no consultations and arrangements were made with the bodies and institutions of the European Union, and the only doubt as to compliance with EU law in relation to the proposed art. 113 in relation to sales value limits, and therefore a provision not applicable in the case (yes Sejm Print 965, Sejm of the 7th term).
On the other hand, however, it should be noted that as regards the possibility of introducing deadlines imposed by Member States, the CJEU has repeatedly spoken as a formal condition. In the judgment of 28 July 2016 in case C-332/15 (Criminal proceedings against Giuseppe Astonego), the CJEU took the position that art. 167, 168, 178 and art. 179 first paragraph and art. 180 and art. 182 Directives 112 do not prevent national provisions providing for a deadline for the exercise of the right to deduct (such as the period in the main proceedings) provided that respect for the principles of equivalence and effectiveness is ensured, as determined by the referring court. In turn, in the judgment of 8 May 2008, issued in Joined Cases C-95/07 and C-96/07 Ecotrade SpA v Agenzia delle Entrate, the CJEU indicated that Art. 17, 18 paragraph 2 and 3 and art. 21 paragraph 1 lit. (b) VI directives do not preclude national rules which provide for a fixed period of time for exercising the right to deduct, provided that the principles of equivalence and effectiveness are respected. At the same time, the principle of effectiveness is not violated simply because the time limit which the tax authority is entitled to recover unpaid value added tax exceeds the time allowed for the taxpayer to exercise the right to deduct. It also needs to be emphasized that in the judgment of 6 February 2014 in the case SC Fatorie SRL v Direcţia Generală a Finanţelor Publice Bihor, the CJEU considered that the time limit, the expiry of which is related to an insufficiently diligent taxpayer who did not report deduction of input VAT, with the sanction of losing the right to deduct, it cannot be considered incompatible with the system established by the VAT Directive, provided that, firstly, the term applies in the same way to analogous tax rights under national law and Union law (principle of equivalence), and secondly, practically does not prevent or excessively impede the exercise of the right to deduct (principle of effectiveness) (judgments: 8 May 2008, Ecotrade, C-95/07 and C-96/07, EU: C: 2008: 267, paragraph 46 and case-law cited there, and of 12 July 2012, EMS-Bulgaria Transport, C-284/11, EU: C: 2012: 458, paragraph 49). It is only from these judgments that the conclusion that the introduction of a formal condition in the form of a limiting period cannot violate the principle of proportionality expressed in art. 273 of Directive 112. In turn, in its judgment of 12 January 2006, in case C – 504/04 ASG, the CJEU emphasized that ” are appropriate to achieve the set goal and do not go beyond what is necessary to achieve it. In other judgments, the CJEU also stressed that, in accordance with the principle of proportionality, the legality of measures imposing financial burdens on entrepreneurs depends on the fact that these measures will be appropriate and necessary to achieve the objectives pursued by the law in question, if it is possible to choose among the many appropriate measures, the least restrictive should be used and ensure that the imposed weights are not excessive in relation to the intended purposes. If the conditions of the procedure for the deduction of value added tax are laid down, this means the possibility of creating such formal requirements that, however, cannot harm the essence of this institution, based on the principle of the neutrality of this tax, i.e. not to charge the taxpayer economically (judgment of 26 June 1990 in case C-8/89 Zardi and in the judgment of the CJEU of 9 July 2015 in case C-183/14 Radu Florin Salomie, Nicolae Vasile Oltean). Note also the position of the CJEU expressed in the judgment of 15 September 2016, reference number C-518/14 in the Senatex case, pursuant to which art. 167, art. 178 lit. a, art. 179 and art. 226 (3) of Directive 112, it must be interpreted as precluding national provisions such as those at issue in the main proceedings, according to which provisions the correction of invoices regarding mandatory data, namely the identification number for the purposes of value added tax, does not has retroactive effects, which means that the right to deduct exercised on the basis of a corrected invoice does not refer to a year,
It follows from the above position of the CJEU that the provisions of Directive 112 do not preclude the possibility for a Member State to introduce time limits for domestic orders, but these time limits may not infringe the principle of fiscal neutrality. They must be proportionate. It is for the national court to examine whether the principle of proportionality and thus no breach of the principle of tax neutrality has been violated, which should examine whether the provision has introduced excessive formalities in relation to the intended objectives, including whether the taxpayer was economically burdensome. In the present case, the role of the national court is therefore to examine whether the introduced deadline objectively meets the conditions arising from the principles of proportionality and tax neutrality. In a situation where it does not meet such conditions,
In the Court’s opinion, in the present case, it is therefore crucial to resolve two issues: firstly, whether the abolition period should be considered proportionate, and secondly, whether the restriction resulting from that period does not infringe the principle of tax neutrality.
In the present case, the Company sees the reasons for missing the deadline in two cases, i.e. independent of the taxpayer and resulting in a delay in receiving the invoice, or causes dependent on the taxpayer, i.e. errors on his side. Due to the reservation made, the description of the facts does not apply to situations related to tax fraud or fraud, it does not apply to the purpose of setting a visit due under Art. 86 section 10b point 2 lit. b utu
Assessing the above in the context of the principle of proportionality, one should first notice the differentiation of the taxpayer’s situation depending on whether it is a tax due or input tax. Article 86 of the Act contains a time limit (term of limitation) in relation to the first of them only within the limitation period, i.e. a five-year period. Thus, adjustment of the tax due is possible until the end of this period (Article 13 and Article 13a of the Act). As regards input tax, the legislator introduced two time limits. Firstly, a 3-month deadline for settlement, and therefore backwards or on an ongoing basis (Article 86 (10b), point 2 (b) and Article 86 (10i)), secondly, a 5-year period (Article 86 (13) and section 13a of the Act). Just as the limitation period does not raise any objections, yes, the due date resulting from art. Art. 86 section 10b point 2 lit. bi art. 86 section 10i utu raises doubts.
On the one hand, in the opinion of the Court, the deadline introduced in art. 86 section 10b point 2 lit. b uptu, i.e. a 3-month deadline, seems to be sufficient time for the taxpayer to obtain an invoice. Undoubtedly, this term is also of a disciplinary nature, because its introduction is aimed at greater activity of taxpayers to obtain invoices documenting WNT. According to the questioning court, the key is that this provision was aimed at preventing situations in which input tax was equal to the tax due, and such settlement was used late due to a later tax adjustment resulting from the later inclusion of the invoice than in the above deadline. Such an action served tax “optimization” and was used to abuse the law. The justification for the amendment also implies that the introduction of the abovementioned deadline gives the tax authorities more control over the settlement of value added tax. The questioning court stipulates that it is not aware of statistics on what percentage of cases involving the use of the right to deduct backwards within a 5-year period, rather than a 3-month period, served tax fraud or abuse of law. On the other hand, however, it should be noted that the taxpayer sometimes has no influence on the abovementioned deadline, as the Company indicates in the present case. It may result from a delay in issuing and sending the invoice by the contractor, or irregularities on the part of postal operators. In addition, the fact that a taxpayer receives an invoice within this period does not always mean that it meets the eligibility requirements for deduction, e.g. in the event of errors in its preparation. It must be emphasized that, in the light of Directive 112, an invoice must meet both subject and subject requirements. At the same time, as pointed out by the CJEU, delay in receiving an invoice correction in terms of formal conditions may not always lead to the taxpayer being deprived of his right to deduct (e.g. in the case of an identification number correction for value added tax purposes). Meanwhile, the conditions introduced from January 1, 2017 show that regardless of what was the reason for the delay, the taxpayer after the expiry of the 3-month period can settle the tax calculated only on an ongoing basis.
According to the interrogating court, assessing art. 86 section 10b point 2 lit. bi art. 86 section 11g and paragraph 11i uptu, due to the case law of the CJEU, one should be guided by the principle of “due diligence of the taxpayer”. Setting a deadline for a careless taxpayer, i.e. one which, due to his own negligence, leads to exceeding the settlement deadline, e.g. by incorrectly classifying transactions, has been recognized by the CJEU as compliant with Directive 112.
The court hearing the case is inclined to recognize that art. 167 in relation from art. 178 of Directive 2006/112 / EC should be interpreted as precluding national provisions which determine the exercise of the taxpayer’s right in good faith to deduct input tax in the same accounting period in which the tax due on the transaction is settled constituting WNT, from showing the tax due on such transactions in a proper tax declaration, submitted within the deadline (in Poland 3 months) from the expiry of the month in which a tax obligation arose in relation to the goods and services purchased, and they remain not preventing the introduction of such a deadline.
4. Summary.
The doubts presented regarding the interpretation of the provision of art. 178 in connection from art. 168 of Directive 2006/112 / EC in the context of the term contained in the light of the above principles (tax neutrality and proportionality) justify asking the CJEU for a preliminary ruling pursuant to Art. 267 second sentence of the TFEU, as stated in the operative part of the order. The CJEU’s response to the above-mentioned doubts also depends on the assessment left to the national court in terms of the validity of the decision brought by the interpretative authority, and the issuing of a preliminary ruling is necessary for the resolution of the case in the main proceedings.
5. Suspension of administrative court proceedings.
In connection with the withdrawal from the abovementioned with a preliminary ruling, the Voivodship Administrative Court in Gliwice has suspended proceedings pursuant to art. 124 § 1 item 5 of the Act – Law on proceedings before administrative courts, which orders the court to suspend proceedings ex officio if the court presents a legal question to the Court of Justice of the European Union in these proceedings.
