# C_2011282EN.01000303.xml

| 24.9.2011 | EN | Official Journal of the European Union | C 282/3 |
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24.9.2011

EN

Official Journal of the European Union

C 282/3

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Reference for a preliminary ruling from the A Magyar Köztársaság Legfelsőbb Bírósága (Hungary) lodged on 29 June 2011 — Gábor Tóth v Nemzeti Adó- és Vámhivatal Észak-magyarországi Regionális Adó Főigazgatósága, as successor to Adó- és Pénzügyi Ellenőrzési Hivatal Hatósági Főosztály Észak-magyarországi Kihelyezett Hatósági Osztály

(Case C-324/11)

2011/C 282/06

Language of the case: Hungarian

Referring court

Referring court

A Magyar Köztársaság Legfelsőbb Bírósága (Supreme Court of the Republic of Hungary)

Parties to the main proceedings

Parties to the main proceedings

Appellant: Gábor Tóth

Appellant:

Respondent: Nemzeti Adó- és Vámhivatal Észak-magyarországi Regionális Adó Főigazgatósága, as successor to Adó- és Pénzügyi Ellenőrzési Hivatal Hatósági Főosztály Észak-magyarországi Kihelyezett Hatósági Osztály

Respondent:

Questions referred

Questions referred

| 1. | Is the principle of tax neutrality (Article 9 of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax) infringed by a legal interpretation which prevents the addressee of an invoice from exercising his right to deduct where the operator who issued it has, prior to full performance of the contract or issue of the invoice, had his business operator’s licence withdrawn by the municipal authority? |
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1.

Is the principle of tax neutrality (Article 9 of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax) infringed by a legal interpretation which prevents the addressee of an invoice from exercising his right to deduct where the operator who issued it has, prior to full performance of the contract or issue of the invoice, had his business operator’s licence withdrawn by the municipal authority?

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| 2. | Can the fact that the individual operator who issued the invoice has not declared the workers whom he employs (who, as a result, work ‘in the black economy’), and the fact that, for that reason, the tax authority has found that the said operator ‘has no declared workers’, prevent the addressee of that invoice from exercising the right to deduct, having regard to the principle of tax neutrality? |
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2.

Can the fact that the individual operator who issued the invoice has not declared the workers whom he employs (who, as a result, work ‘in the black economy’), and the fact that, for that reason, the tax authority has found that the said operator ‘has no declared workers’, prevent the addressee of that invoice from exercising the right to deduct, having regard to the principle of tax neutrality?

| 3. | Can it be held that the addressee of the invoice is guilty of a lack of care when he does not verify either whether a legal relationship exists between the workers employed on a work site and the issuer of the invoice or whether the latter has fulfilled his tax-return obligations or any other obligations relating to those workers? Can it be held that such conduct constitutes an objective factor which demonstrates that the addressee of the invoice knew or ought to have known that he was participating in a transaction involving fraudulent evasion of VAT? |
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3.

Can it be held that the addressee of the invoice is guilty of a lack of care when he does not verify either whether a legal relationship exists between the workers employed on a work site and the issuer of the invoice or whether the latter has fulfilled his tax-return obligations or any other obligations relating to those workers? Can it be held that such conduct constitutes an objective factor which demonstrates that the addressee of the invoice knew or ought to have known that he was participating in a transaction involving fraudulent evasion of VAT?

| 4. | Having regard to the principle of tax neutrality, can the national court take the above circumstances into consideration when its overall assessment leads it to the conclusion that the economic transaction did not take place between the persons specified on the invoice? |
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4.

Having regard to the principle of tax neutrality, can the national court take the above circumstances into consideration when its overall assessment leads it to the conclusion that the economic transaction did not take place between the persons specified on the invoice?

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(1)  Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).

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