Article 9a Council Implementing Regulation (EU) No. 282/2011 – Application for reference to CJEU under art 267 TFEU – Validity of European Commission Implementing Regulation – test to be applied – Order for referral – Interpretation of Council Implementing Regulation – test to be applied – application for reference refused
Court documents published reveal the company could be obliged to pay £11,236,478 following a tax tribunal decision, which was this Tuesday extended so that Judge Anne Scott could ask the European Court of Justice to clarify a crucial legal detail. Tribunal Judge Anne Scott stated that “it is very strongly arguable that the introduction of the presumption in Article 9a [of the Implementing Regulation] is not a technical measure, it is a sea change”.
Whilst it is entirely possible that HMRC are correct in stating that Article 9a simply clarifies Article 28, nevertheless in the words of Mr Justice Mitting, they have delivered no knock out blow to the arguments advanced by the appellant. The appellant’s arguments are certainly not unfounded. Indeed, in regard to the introduction of the presumption it is strongly arguable that that is a manifest error. The Tribunal therefore determines that it will make a reference to the CJEU to seek a preliminary ruling as to the validity of Article 9a.
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