This case is about the determination of the deadline by which a taxable person must establish fulfilment of the conditions for entitlement to a refund of VAT and of the time when, as a consequence of any negligence or abuse on his part, a taxable person loses the right to such a refund.
Article in the EU VAT Directive
Articles 3 and 7 of Directive 79/1072 and the annexes thereto, and in Articles 15, 8 and 9 of Directive 2008/9
Annexes A and C of the Council Directive 2006/112/EC
Facts
The applicant (GE Auto Service Leasing GmbH) submitted requests to the Spanish tax authorities for a refund of the VAT amounts paid in the years 2005 and 2006. The tax authorities requested further information and evidence to substantiate the VAT refund on several occasions. the applicant has not responded (in time). The petitioner’s requests and objection were rejected, after which the petitioner lodged economic-administrative complaints with the TEAC (central court in economic and administrative matters). In doing so, the applicant did submit all kinds of documents, contracts, statements and invoices. The TEAC rejected the complaints, arguing that the relevant evidence should have been provided to the tax authorities. The economic-administrative complaints procedure would not be the right time for this. Subsequently, the applicant brought an action before the referring court, which dismissed the action in its entirety. The applicant lodged an appeal on this point. The Tribunal Supremo quashed the TEAC’s ruling and reversed the proceedings to allow the referring court to issue a new ruling taking the evidence with it.
Consideration:
The subject-matter of the present request for a preliminary ruling is to determine whether a court or tribunal is required to assess documents late in providing a taxable person not established in the Member State to justify his right to a refund of VAT, in breach of Articles 3 and 7 of Directive 79/1072 or Articles 15, 8 and 9 of Directive 2008/9, and contrary to the case-law of the Court on this. If such a body were to assess them, it would mean that the taxpayer would not be bound by any time limit to demonstrate that he fulfills the conditions for the right to a refund and that he could provide evidence when and how he only wants even if he would have failed to do so after being requested to do so by the tax authorities, insofar as no bad faith or abuse of rights can be attributed to him. The fact that the referring court is in a position to carry out the order of the Tribunal Supremo, which order is manifestly contrary to the legislation and case-law of the European Union, justifies the referral of this matter.
Questions
Must it be accepted as lawful for a taxable person, following repeated requests from the tax authority that it establish compliance with the conditions for entitlement to a refund, to fail to comply with those requests without any reasonable justification and, after it has been refused a refund, for that person to defer the submission of documents until the review procedure or legal action?
Can a situation where a taxable person does not provide the tax authority with the necessary information on which it bases its right when it has been permitted and formally required to do so, and that taxable person fails to provide that information without reasonable justification and the information is instead submitted voluntarily at a later date to a review body or a court, be regarded as an abuse of rights?
Does a non-established taxable person, either on the ground that it failed to submit the relevant information for establishing its right to a refund on time and without reasonable justification, or on the ground that it engaged in abusive practices, lose its right to a refund once the period stipulated or granted for that purpose has elapsed and the tax authority has issued a decision refusing the refund?
AG Opinion
Decision
Personal comments/VATupdate
Source
Similar ECJ cases
C-101/16; C-286/94, C-340/95, C-401/95 and C-47/96; C-332/15; C-110/99; C-158/08
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