# C_2011238EN.01000801.xml

| 13.8.2011 | EN | Official Journal of the European Union | C 238/8 |
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13.8.2011

EN

Official Journal of the European Union

C 238/8

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Reference for a preliminary ruling from the Varnenski administrativen sad (Bulgaria) lodged on 8 June 2011 — Bonik EOOD v Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’, Varna

(Case C-285/11)

2011/C 238/13

Language of the case: Bulgarian

Referring court

Referring court

Varnenski administrativen sad

Parties to the main proceedings

Parties to the main proceedings

Applicant: Bonik EOOD

Applicant:

Defendant: Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’, Varna

Defendant:

Questions referred

Questions referred

| 1. | Can the concept ‘absence of actual supply’ be inferred by interpretation from the provisions of Articles 178(a) and (b), 14, 62, 63, 167 and 168 of Directive 2006/112 (1) and, if so, is ‘absence of actual supply’ coextensive, as regards its definition, with the concept ‘tax evasion’ or is it included in that concept? What does the concept ‘tax evasion’ cover within the meaning of the Directive? |
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1.

Can the concept ‘absence of actual supply’ be inferred by interpretation from the provisions of Articles 178(a) and (b), 14, 62, 63, 167 and 168 of Directive 2006/112 (1) and, if so, is ‘absence of actual supply’ coextensive, as regards its definition, with the concept ‘tax evasion’ or is it included in that concept? What does the concept ‘tax evasion’ cover within the meaning of the Directive?

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| 2. | In the light of the definition of ‘tax evasion’ and of recitals 26 and 59 in the preamble in conjunction with Article 178(b) of the Directive, does the Directive require that the formalities be expressly laid down by means of legislation in the form of an act of the Member State’s highest legislative body or does it allow those formalities not to be laid down by means of legislation, but to constitute an administrative (and tax investigation) practice and case-law? May formalities be introduced by legislative acts of the administrative authorities and/or by instructions of the administration? |
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2.

In the light of the definition of ‘tax evasion’ and of recitals 26 and 59 in the preamble in conjunction with Article 178(b) of the Directive, does the Directive require that the formalities be expressly laid down by means of legislation in the form of an act of the Member State’s highest legislative body or does it allow those formalities not to be laid down by means of legislation, but to constitute an administrative (and tax investigation) practice and case-law? May formalities be introduced by legislative acts of the administrative authorities and/or by instructions of the administration?

| 3. | If it is a concept which differs from ‘tax evasion’ and is not covered by the definition of the latter, does ‘absence of actual supply’ constitute a formality as referred to in Article 178(b) or a measure as referred to in recital 59 in the preamble to the Directive, the introduction of which results in refusal of the right of deduction and jeopardises the neutrality of VAT, a fundamental principle of the common system of value added tax which was introduced by the relevant Community legislation? |
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3.

If it is a concept which differs from ‘tax evasion’ and is not covered by the definition of the latter, does ‘absence of actual supply’ constitute a formality as referred to in Article 178(b) or a measure as referred to in recital 59 in the preamble to the Directive, the introduction of which results in refusal of the right of deduction and jeopardises the neutrality of VAT, a fundamental principle of the common system of value added tax which was introduced by the relevant Community legislation?

| 4. | Is it permissible to lay down formalities for taxable persons according to which they must provide evidence of supplies which preceded the supply between them (that is, the final customer and his supplier) in order for the supply to be deemed to have been actually carried out, if the authority does not dispute that the persons concerned (the final suppliers) have carried out downstream supplies of the same goods in the same quantities to downstream customers? |
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4.

Is it permissible to lay down formalities for taxable persons according to which they must provide evidence of supplies which preceded the supply between them (that is, the final customer and his supplier) in order for the supply to be deemed to have been actually carried out, if the authority does not dispute that the persons concerned (the final suppliers) have carried out downstream supplies of the same goods in the same quantities to downstream customers?

| 5. | Under the common system of value added tax and the provisions of Articles 168 and 178 of Directive 2006/112, is the right of the trader to recognition of VAT payments in respect of a given transaction






  (a) | to be assessed solely in relation to the specific transaction to which the trader is party, having regard to the trader’s intention to be a party to the transaction, and/or |
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5.

Under the common system of value added tax and the provisions of Articles 168 and 178 of Directive 2006/112, is the right of the trader to recognition of VAT payments in respect of a given transaction

(a)

to be assessed solely in relation to the specific transaction to which the trader is party, having regard to the trader’s intention to be a party to the transaction, and/or

| (b) | to be assessed taking account of all transactions, including upstream and downstream transactions, which form a supply chain of which the transaction in question is part, having regard to the intentions of the other parties in the chain, which the trader does not know and/or about which he cannot find out, or to the acts and/or omissions of the issuer of the invoice and of the other parties in the chain, namely his upstream suppliers, whom the person to whom the supply is made cannot control and of whom he cannot demand particular conduct, and/or |
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(b)

to be assessed taking account of all transactions, including upstream and downstream transactions, which form a supply chain of which the transaction in question is part, having regard to the intentions of the other parties in the chain, which the trader does not know and/or about which he cannot find out, or to the acts and/or omissions of the issuer of the invoice and of the other parties in the chain, namely his upstream suppliers, whom the person to whom the supply is made cannot control and of whom he cannot demand particular conduct, and/or

| (c) | to be assessed taking account of fraudulent acts and intentions of other parties in the chain, of whose participation the trader did not know and about whose acts or intentions it cannot be established whether he was able to find out, regardless of whether those acts or intentions date from before or after a given transaction? |
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(c)

to be assessed taking account of fraudulent acts and intentions of other parties in the chain, of whose participation the trader did not know and about whose acts or intentions it cannot be established whether he was able to find out, regardless of whether those acts or intentions date from before or after a given transaction?

| 6. | Depending on the answer to question 5: Are transactions such as those at issue in the main proceedings to be regarded as supplies for consideration as referred to in Article 2 of Directive 2006/112 or as part of the taxable person’s economic activity within the meaning of Article 9(1) of the Directive? |
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6.

Depending on the answer to question 5: Are transactions such as those at issue in the main proceedings to be regarded as supplies for consideration as referred to in Article 2 of Directive 2006/112 or as part of the taxable person’s economic activity within the meaning of Article 9(1) of the Directive?

| 7. | Is it permissible for transactions such as those at issue in the main proceedings, which were properly documented and declared for VAT purposes by the supplier, in respect of which the customer has in fact acquired the right of ownership of the goods invoiced and there are no indications as to whether he actually received the goods from a person who was not the issuer of the invoice, not to be regarded as supplies for consideration as referred to in Article 2 of Directive 2006/112 merely because the supplier was not found at the address indicated and did not produce the documents requested during the tax investigation or did not provide evidence to the tax authorities for all the circumstances under which the supplies were carried out, including the origin of the goods sold? |
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7.

Is it permissible for transactions such as those at issue in the main proceedings, which were properly documented and declared for VAT purposes by the supplier, in respect of which the customer has in fact acquired the right of ownership of the goods invoiced and there are no indications as to whether he actually received the goods from a person who was not the issuer of the invoice, not to be regarded as supplies for consideration as referred to in Article 2 of Directive 2006/112 merely because the supplier was not found at the address indicated and did not produce the documents requested during the tax investigation or did not provide evidence to the tax authorities for all the circumstances under which the supplies were carried out, including the origin of the goods sold?

| 8. | Does it constitute a permissible measure for the purpose of ensuring the collection of tax and preventing tax evasion that the right of deduction is made dependent on the conduct of the supplier and/or his upstream suppliers? |
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8.

Does it constitute a permissible measure for the purpose of ensuring the collection of tax and preventing tax evasion that the right of deduction is made dependent on the conduct of the supplier and/or his upstream suppliers?

| 9. | Depending on the answers to questions 2, 3 and [4]: Do measures of the tax authorities such as those at issue in the main proceedings, which lead to exclusion of the VAT arrangements in relation to the transactions concluded by a bona fide trader, infringe the principles of Community law of proportionality, equal treatment and legal certainty? |
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9.

Depending on the answers to questions 2, 3 and [4]: Do measures of the tax authorities such as those at issue in the main proceedings, which lead to exclusion of the VAT arrangements in relation to the transactions concluded by a bona fide trader, infringe the principles of Community law of proportionality, equal treatment and legal certainty?

| 10. | Depending on the answers to the above questions: In circumstances such as those of the main proceedings, does the person to whom the supplies are made have a right to deduct the tax invoiced to him by the suppliers? |
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10.

Depending on the answers to the above questions: In circumstances such as those of the main proceedings, does the person to whom the supplies are made have a right to deduct the tax invoiced to him by the suppliers?

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(1)  OJ L 347, p. 1;

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