On March 18, 2021, the ECJ issued the AG Opinion on the case C-855/19 ((Dyrektor Izby Administracji Skarbowej w Bydgoszczy) related to Intra-Community acquisitions of motor fuels, payment of VAT within five days of each of the 20 transactions
Previously we posted a summary/unofficial translation. This is the order from the Polish Supreme Court with more details.
Context: Reference for a preliminary ruling – Common system of value added tax – Intra-Community acquisition of fuels – Obligation to pay the tax in advance – Period of five days from the introduction of the fuels into national territory – Article 110 TFEU – Prohibition on levying higher internal taxes on products from other Member States – Directive 2006/112 / EC – Article 273 – Measures to avoid fraud – Articles 62 and 69 – Due date of the tax – Absence – Article 206 – Concept of “installments” “- Provisional deposit relating to a tax not payable – Basis of calculation – Gross amount calculated on a taxable transaction – Net amount of tax calculated over the entire taxable period
Articles in the EU VAT Directive
Artcles 69, 206 and 273 of the EU VAT Directive 2006/112/EC
Article 69
In the case of the intra-Community acquisition of goods, VAT shall become chargeable on issue of the invoice, or on expiry of the time limit referred to in the first paragraph of Article 222 if no invoice has been issued by that time.
Article 206
Any taxable person liable for payment of VAT must pay the net amount of the VAT when submitting the VAT return provided for in Article 250. Member States may, however, set a different date for payment of that amount or may require interim payments to be made.
Article 273
Member States may impose other obligations which they deem necessary to ensure the correct collection of VAT and to prevent evasion, subject to the requirement of equal treatment as between domestic transactions and transactions carried out between Member States by taxable persons and provided that such obligations do not, in trade between Member States, give rise to formalities connected with the crossing of frontiers.
The option under the first paragraph may not be relied upon in order to impose additional invoicing obligations over and above those laid down in Chapter 3.
Facts/background
The tax authorities have established that in December 2016 the applicant acquired diesel oil of CN code 2710 19 43 and was therefore obliged in accordance with Article 103 (5a) of the Law on the tax on goods and services (uptu) to to pay VAT for the 20 transactions in which it brought such goods into its national territory, which the applicant failed to do. It also failed to submit the VAT return VAT-14 for the period covered by this procedure, although in the case of an intra-Community acquisition of the goods referred to in Article 103 (5a uptu) every taxable person is obliged to submit at the latest by the 5th of the month following the month in which the obligation to pay the tax arose, to declare the monthly VAT due to the head of the customs office competent for the settlement of the excise duty. Consequently, it was found that the amount of VAT of PLN 1 530 766 for December 2016 constituted a tax arrears, which, together with the default interest due, should be paid immediately into the bank account of the tax authorities. The applicant challenged this decision before the Polish administrative court of first instance, which rejected the complaint lodged. The applicant subsequently lodged an appeal against this decision with the highest administrative court in Poland. Consequently, it was found that the amount of VAT of PLN 1 530 766 for December 2016 constituted a tax arrears, which, together with the default interest due, should be paid immediately into the bank account of the tax authorities. The applicant challenged this decision before the Polish administrative court of first instance, which rejected the complaint lodged. The applicant subsequently lodged an appeal against this decision with the highest administrative court in Poland. Consequently, it was found that the amount of VAT of PLN 1 530 766 for December 2016 constituted a tax arrears, which, together with the default interest due, should be paid immediately into the bank account of the tax authorities. The applicant challenged this decision before the Polish administrative court of first instance, which rejected the complaint lodged. The applicant subsequently lodged an appeal against this decision with the highest administrative court in Poland.
Consideration:
On 08-01-2016, the law amending the law on the tax on goods and services and certain others
entered into force. For this change, in the case of an intra-Community acquisition of motor fuels, no VAT had to be paid at the time of acquisition, as the active VAT taxable person in principle had to settle this acquisition by means of the VAT-7 declaration, by the 25th of the month after each consecutive tax period. In the appeal in cassation, it has been argued that the new regulation of Article 103, paragraph 5a, uptu is contrary to Article 110 TFEU, since it introduces a tax that discriminates against goods originating from other Member States. This also follows from the case law of the Court. A longer period in the payment of tax has the effect that the trader concerned acquires a specific economic advantage and, on the contrary, finds himself in a more disadvantageous financial situation when the period for payment of tax on goods from other Member States is shortened. Member States may set time limits for the payment of VAT but must respect the requirements of Article 273 of the VAT Directive. The question therefore arises as to whether Article 110 TFEU and Article 273 of the VAT Directive preclude a provision on accelerated payments of VAT such as Article 103 (5a, uptu) If the scheme is not contrary to EU law, the second question is or the payments of tax within the meaning of Section 103, paragraph 5a, uptu concern separately regulated accelerated collection of VAT or provisional advance payments of this tax within the meaning of Article 206 of the VAT Directive. Finally, the referring court wonders whether an advance payment of VAT within the meaning of Article 206 of the VAT Directive that is not made in time ceases to exist legally at the end of the tax period for which it must be made. This is relevant for determining whether, after the expiry of the tax period, the amount of advance payments should be determined as well as for determining the date up to which interest is to be charged on advance payments not made in good time. Finally, the referring court wonders whether an advance payment of VAT within the meaning of Article 206 of the VAT Directive that is not made in time ceases to exist legally at the end of the tax period for which it must be made. This is relevant for determining whether, after the expiry of the tax period, the amount of advance payments should be determined as well as for determining the date up to which interest is to be charged on advance payments not made in good time. Finally, the referring court wonders whether an advance payment of VAT within the meaning of Article 206 of the VAT Directive that is not made in time ceases to exist legally at the end of the tax period for which it must be made. This is relevant for determining whether, after the expiry of the tax period, the amount of advance payments should be determined as well as for determining the date up to which interest is to be charged on advance payments not made in good time.
Questions:
Do Article 110 of the Treaty on the Functioning of the European Union and Article 273 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added 1 not preclude a provision such as Article 103(5a) 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 which stipulates that, in the case of an intra-Community acquisition of motor fuels, the taxable person is obliged, without being called upon to do so by the head of the customs office, to calculate and pay the amounts of tax to the account of the customs office competent for dealing with the payment of excise duty:
(a) within 5 days of the date on which the goods in question enter the place of receipt of excise goods specified in the relevant permit — if the goods are the subject of intra-Community acquisition within the meaning of the Ustawa z dnia 6 grudnia 2008 r. o podatku akcyzowym (Law of 6 December 2008 on excise duty) by a registered consignee under the excise duty suspension procedure pursuant to the provisions on excise duty;
(b) within 5 days of the date on which such goods enter a tax warehouse from the territory of a Member State other than Poland;
(c) upon the movement of these goods within the territory of Poland — if the goods are moved outside of the excise duty suspension procedure pursuant to the provisions on excise duty?
Does Article 69 of Directive 2006/112/EC preclude a provision such as Article 103(5a) of the VAT Law, which stipulates that, in the case of the intra-Community acquisition of motor fuels, the taxable person is obliged, without being called upon to do so by the head of a customs office, to calculate and pay the amounts of tax to the account of the customs office competent for dealing with the payment of excise duty:
(a) within 5 days of the date on which the goods in question enter the place of receipt of excise goods specified in the relevant permit — if the goods are the subject of intra-Community acquisition within the meaning of the Law of 6 December 2008 on excise duty by a registered consignee under the excise duty suspension procedure pursuant to the provisions on excise duty;
(b) within 5 days of the date on which such goods enter a tax warehouse from the territory of a Member State other than Poland;
(c) upon the movement of these goods within the territory of Poland — if the goods are moved outside of the excise duty suspension procedure pursuant to the provisions on excise duty:
– where the above amounts are interpreted as not constituting interim VAT payments within the meaning of Article 206 of Directive 2006/112/EC?
Does an interim VAT payment within the meaning of Article 206 of Directive 2006/112/EC which is not paid on time lose its legal status at the end of the tax period for which it is to be paid?
AG Opinion
In the light of the foregoing considerations, I suggest that the Court answer the questions referred for a preliminary ruling by the Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland) as follows:
1) Article 110 TFEU must be interpreted as meaning that it does not preclude the establishment of an obligation of advance payment of value added tax (VAT) for intra-Community purchases of fuels in five days following the introduction of fuels on the national territory.
2) Article 273 of Council Directive 2006/112 / EC of 28 November 2006 on the common system of value added tax, as amended by Council Directive (EU) 2016/856 of 25 May 2016, must be interpreted as meaning that it does not preclude the establishment of an obligation of advance payment of VAT for intra-community purchases of fuels within five days of the introduction of the fuels into the territory national, provided that this obligation is compatible with the other provisions of this directive, in particular those relating to the chargeability of the tax.
3) Articles 62 and 69 of Directive 2006/112, as amended by Directive 2016/856, must be interpreted as meaning that they preclude an obligation of advance payment of VAT for intra-Community acquisitions of fuels within five days of the introduction of the fuels into the national territory, insofar as it allows the tax administration to demand payment from the taxable person before the tax becomes payable, it being understood that the possibility of collecting installments, provided for in Article 206 of that directive, can only concern a tax which has become chargeable by virtue of the abovementioned provisions.
4) Article 206 of Directive 2006/112, as amended by Directive 2016/856, must be interpreted as precluding an obligation of advance payment of VAT for intra-Community purchases of fuels , since this obligation relates to the gross amount of tax due on this transaction, considered in isolation, and not to the net amount of tax calculated over the entire taxable period.
Decision
Source
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