In a decision dated February 11th, 2020, the Administrative Court of Appeal of Versailles (CAA Versailles, February 11th, 2020, n°16VE01682, TRIUNFALEGRIA UNIPESSOAL LDA) has performed a first application of the ECJ case law, Sea Chefs Cruise Services GmbH (ECJ, May 2nd 2019, C-133/18, Sea Chefs Cruise Services GmbH).
As per reminder, in its decision, the ECJ has considered that the one-month period provided for in Article 20 of Directive 2008/9/EC for providing the Member State of refund with the additional information requested by that Member State is not a foreclosure period. Thus, if no response has been received in that time, the taxable person cannot lose the possibility of regularising his refund application.
Therefore, even if the one-month delay is over, the taxable person can produce, directly before the national court, additional information permitting of establishing the existence of a right to a refund of the VAT credit.
Following this position, the Administrative Court of Appeal of Versailles performs the first application of the ECJ decision and considers that the Article 242-0 W of Annex II to the FTC transposed the Article 20 of Directive 2008/9/EC. As a consequence, the Court considers that the taxable person, may at any time, including for the first time in the context of judicial appeal, justify his right to a refund of the VAT credit he is seeking by providing this information.
This position will secure the right of deduction of foreign companies in France and is in line with the unofficial position of the NRTA (Non Resident Tax authorities) considering in a positive way the solution of the ECJ. The goal of the NRTA is not to block the VAT refund to the foreign companies.
Contributiion by Nathalie Habibou – Arsene-taxand.com
