On February 21, 2022, the ECJ issued its Order in the case C-550/21 (Leonardo SpA).
This request has been made in the context of a dispute between Leonardo SpA and the Agenzia delle Entrate – Direzione regionale del Lazio (Tax Administration – Regional Directorate of Lazio, Italy) (‘the Tax Administration’), concerning the payment of default interest linked to the reimbursement of excess VAT relating to the year 2014.
Questions:
(1) Does EU law preclude a national provision, such as Article 38a(1) of Decree No 633/1972 , under which, where the tax administration opens a tax audit procedure, the date for reimbursement of the excess VAT can be postponed until the end of the audit and the payment of default interest can be refused, even if the duration of the tax audit procedure is excessive and is not entirely attributable to the behavior of the taxable person?
2) Does EU law preclude a national provision, such as Article 38a(1) of Decree No 633/1972 , under which, when the tax authorities open a tax audit procedure, the date for reimbursement of the excess VAT may be postponed until the end of the audit and the payment of default interest may be refused, when the taxable person has, by mistake, omitted to produce a few documents among the many documents requested by the tax authorities?
3) Does EU law preclude a national provision, such as Article 38a(1) of Decree No 633/1972 , under which interest is suspended for a period of ninety days following the presentation of the declaration containing the request for reimbursement?
4) Does EU law preclude a national provision, such as Article 38a(1) of Decree No 633/1972 , under which, when the tax administration requests the provision of guarantees to proceed with a reimbursement of the VAT recognized as being due – at the end of a long investigation constituting a real tax audit –, it can suspend the course of interest, when these guarantees are presented after the fifteenth day of the demand ?
5) Does EU law preclude a national provision under which, when the tax authorities must recalculate the interest on a refund of VAT recognized as being due – at the end of a long instruction constituting a real tax audit – the taxpayer, to obtain such a new calculation, must first return the amounts he has already received from the tax authorities as reimbursement of excess VAT and interest thereon?
Order (summary, based on French text)
Under Article 53(2) of the Rules of Procedure, where a claim or application is manifestly inadmissible, the Court, after hearing the Advocate General, may at any time decide to rule by reasoned order , without continuing the procedure. That provision must be applied in the present case.
It is essential for the national court to explain, in that decision, the factual and regulatory framework in which the dispute in the main proceedings falls and to give an minimum explanation of the reasons for the choice of the provisions of EU law whose interpretation it seeks, as well as the link it establishes between these provisions and the national legislation applicable to the dispute submitted to it.. In the present case, the order for reference clearly does not meet the .. requirements.
.. the referring court sets out only very briefly the subject-matter of the dispute , limiting itself to providing a general description of the facts.
In the light of the foregoing considerations, it must be held, pursuant to Article 53(2) of the Rules of Procedure, that this reference for a preliminary ruling is manifestly inadmissible.
The request for a preliminary ruling from the Commissione tributaria provincial di Roma (Provincial Tax Commission of Rome, Italy), by decision of 21 July 2021, is manifestly inadmissible.
Source: Curia
