# C_2012080EN.01001001.xml

| 17.3.2012 | EN | Official Journal of the European Union | C 80/10 |
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17.3.2012

EN

Official Journal of the European Union

C 80/10

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Reference for a preliminary ruling from the Varneski administrativen sad (Bulgaria) lodged on 15 December 2011 — LVK-56 ЕООD v Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — grad Varna pri Tsentralno Upravlenie na Natsionalnata Agentsia za Prihodite

(Case C-643/11)

2012/C 80/13

Language of the case: Bulgarian

Referring court

Referring court

Varneski administrativen sad

Parties to the main proceedings

Parties to the main proceedings

Applicant: LVK-56 ЕООD

Applicant:

Defendant: Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — grad Varna pri Tsentralno Upravlenie na Natsionalnata Agentsia za Prihodite

Defendant:

Questions referred

Questions referred

| 1. | Does Article 203 of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax cover all cases of incorrectly charged VAT, including cases in which an invoice showing VAT was issued without a chargeable event having occurred? If the answer to that question is in the affirmative, do Articles 203 and 273 require the Member States to lay down express rules to the effect that VAT shown on an invoice in respect of which no supply has taken place is payable, or is it sufficient for them to transpose the general rule in the Directive to the effect that that tax is payable by any person who enters it on an invoice? |
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1.

Does Article 203 of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax cover all cases of incorrectly charged VAT, including cases in which an invoice showing VAT was issued without a chargeable event having occurred? If the answer to that question is in the affirmative, do Articles 203 and 273 require the Member States to lay down express rules to the effect that VAT shown on an invoice in respect of which no supply has taken place is payable, or is it sufficient for them to transpose the general rule in the Directive to the effect that that tax is payable by any person who enters it on an invoice?

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| 2. | In the light of recital 39 in the preamble to Directive 2006/112 and with a view to ensuring the accuracy of deductions, do Articles 73, 179 and 203 of Directive 2006/112 require that, where VAT is shown on an invoice without a chargeable event having occurred, the revenue authorities must correct the tax base and the tax charged? |
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2.

In the light of recital 39 in the preamble to Directive 2006/112 and with a view to ensuring the accuracy of deductions, do Articles 73, 179 and 203 of Directive 2006/112 require that, where VAT is shown on an invoice without a chargeable event having occurred, the revenue authorities must correct the tax base and the tax charged?

| 3. | Can the special measures provided for in Article 395 of Directive 2006/112 consist in a tax practice such as that in the main proceedings, whereby, for the purposes of verifying deductions, the revenue authorities check only the deduction made, while the tax on the output supplies is regarded as being necessarily payable solely because it was shown on an invoice? If that question is answered in the affirmative, is it permissible under Article 203 of Directive 2006/112 — and, if so, in what circumstances — for VAT on the same transaction to be collected once from the provider of the goods or services, because he entered the tax on an invoice, and a second time from the purchaser of the goods or recipient of the services, inasmuch as he is refused the right to deduct? |
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3.

Can the special measures provided for in Article 395 of Directive 2006/112 consist in a tax practice such as that in the main proceedings, whereby, for the purposes of verifying deductions, the revenue authorities check only the deduction made, while the tax on the output supplies is regarded as being necessarily payable solely because it was shown on an invoice? If that question is answered in the affirmative, is it permissible under Article 203 of Directive 2006/112 — and, if so, in what circumstances — for VAT on the same transaction to be collected once from the provider of the goods or services, because he entered the tax on an invoice, and a second time from the purchaser of the goods or recipient of the services, inasmuch as he is refused the right to deduct?

| 4. | Is a tax practice such as that in the main proceedings — whereby the purchaser of taxable goods or the recipient of taxable services is refused the right to deduct on the ground that there is ‘no evidence that the supply took place’, without any account being taken of findings already made to the effect that a right to claim tax has accrued against the provider of the goods or services and that tax is payable by him, bearing in mind that, up to the point at which the accrual of the right to deduct was evaluated, the tax assessment notice in question had not been adjusted and no reason to adjust it in the manner prescribed by the State had emerged or been established — in breach of the non-cumulative nature of VAT and at odds with the principles of legal certainty, equal treatment and fiscal neutrality? |
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4.

Is a tax practice such as that in the main proceedings — whereby the purchaser of taxable goods or the recipient of taxable services is refused the right to deduct on the ground that there is ‘no evidence that the supply took place’, without any account being taken of findings already made to the effect that a right to claim tax has accrued against the provider of the goods or services and that tax is payable by him, bearing in mind that, up to the point at which the accrual of the right to deduct was evaluated, the tax assessment notice in question had not been adjusted and no reason to adjust it in the manner prescribed by the State had emerged or been established — in breach of the non-cumulative nature of VAT and at odds with the principles of legal certainty, equal treatment and fiscal neutrality?

| 5. | Is it permissible under Articles 167 and 168(a) of Directive 2006/112 for the purchaser of taxable goods or the recipient of taxable services who fulfils all the conditions laid down in Article 178 of the Directive to be refused the right to deduct after a tax assessment notice which was issued to the provider of the goods or services and has become final did not correct the VAT charged on that supply because ‘no chargeable event occurred’, but, rather, the right to claim tax was recognised as having accrued and was taken into consideration in determining the net tax due for the tax period in question? Is it relevant to the answer to that question that the provider of the goods or services did not submit any accounting documents during the tax assessment and that the net tax due for that period was determined solely by reference to the information given in the VAT declarations and in the sales and purchase books? |
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5.

Is it permissible under Articles 167 and 168(a) of Directive 2006/112 for the purchaser of taxable goods or the recipient of taxable services who fulfils all the conditions laid down in Article 178 of the Directive to be refused the right to deduct after a tax assessment notice which was issued to the provider of the goods or services and has become final did not correct the VAT charged on that supply because ‘no chargeable event occurred’, but, rather, the right to claim tax was recognised as having accrued and was taken into consideration in determining the net tax due for the tax period in question? Is it relevant to the answer to that question that the provider of the goods or services did not submit any accounting documents during the tax assessment and that the net tax due for that period was determined solely by reference to the information given in the VAT declarations and in the sales and purchase books?

| 6. | Depending on the answers to the above questions, are Articles 167 and 168(a) of Directive 2006/112 to be interpreted as meaning that, in circumstances such as those in the main proceedings, the neutrality of VAT requires that a taxable person must be able to deduct the tax charged on supplies made to him? |
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6.

Depending on the answers to the above questions, are Articles 167 and 168(a) of Directive 2006/112 to be interpreted as meaning that, in circumstances such as those in the main proceedings, the neutrality of VAT requires that a taxable person must be able to deduct the tax charged on supplies made to him?

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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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