# C_2015381EN.01001501.xml

| 16.11.2015 | EN | Official Journal of the European Union | C 381/15 |
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16.11.2015

EN

Official Journal of the European Union

C 381/15

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Request for a preliminary ruling from the Fővárosi Közigazgatási és Munkaügyi Bíróság (Hungary) lodged on 18 August 2015 — Signum Alfa Sped Kft. v Nemzeti Adó- és Vámhivatal Kiemelt Adó- és Vám Főigazgatóság

(Case C-446/15)

(2015/C 381/18)

Language of the case: Hungarian

Referring court

Referring court

Fővárosi Közigazgatási és Munkaügyi Bíróság

Parties to the main proceedings

Parties to the main proceedings

Applicant: Signum Alfa Sped Kft.

Applicant:

Defendant: Nemzeti Adó- és Vámhivatal Kiemelt Adó- és Vám Főigazgatóság

Defendant:

Questions referred

Questions referred

| 1. | Are the provisions of Directive 2006/112 (1) concerning the deduction of VAT to be interpreted as meaning that the tax authorities may in general require a taxable person, who wishes to exercise his right to deduct VAT to check, in order that the tax authorities should not treat the financial transaction as a sham, whether the issuer of the invoice for the services in respect of which he wishes to exercise the right to deduct has the necessary personal and material resources for providing the service in question, both when the service is provided and when the check is made, and whether he has satisfied his obligations as regards declaration and payment of VAT, or to be in possession of documents relating to the financial transaction, other than the invoice, that do not contain formal defects? May the issuer of the invoice be required to carry on its economic activity without any irregularity, not only at the time of the legal transaction forming the basis of the right to deduct VAT, but also at the time of the tax inspection? |
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1.

Are the provisions of Directive 2006/112 (1) concerning the deduction of VAT to be interpreted as meaning that the tax authorities may in general require a taxable person, who wishes to exercise his right to deduct VAT to check, in order that the tax authorities should not treat the financial transaction as a sham, whether the issuer of the invoice for the services in respect of which he wishes to exercise the right to deduct has the necessary personal and material resources for providing the service in question, both when the service is provided and when the check is made, and whether he has satisfied his obligations as regards declaration and payment of VAT, or to be in possession of documents relating to the financial transaction, other than the invoice, that do not contain formal defects? May the issuer of the invoice be required to carry on its economic activity without any irregularity, not only at the time of the legal transaction forming the basis of the right to deduct VAT, but also at the time of the tax inspection?

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| 2. | If the tax authorities, having regard to the circumstances described in the first question, should declare that, although the financial transaction has taken place, the content of the invoice lacks verisimilitude, because that transaction was not performed between the parties mentioned in the invoice, are the tax authorities required, in view of the fact that, as a general rule, the burden of proof lies with them, also to ascertain who the persons are that performed the legal transaction in such a case and who it was that issued the invoice, or may the tax authorities refuse the right to deduct claimed by the taxable person, without conclusive proof of the abovementioned elements of fact, without information or circumstances indicating the name or role of the third person, but merely on the basis of what has been declared in that respect by the tax authorities themselves? |
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2.

If the tax authorities, having regard to the circumstances described in the first question, should declare that, although the financial transaction has taken place, the content of the invoice lacks verisimilitude, because that transaction was not performed between the parties mentioned in the invoice, are the tax authorities required, in view of the fact that, as a general rule, the burden of proof lies with them, also to ascertain who the persons are that performed the legal transaction in such a case and who it was that issued the invoice, or may the tax authorities refuse the right to deduct claimed by the taxable person, without conclusive proof of the abovementioned elements of fact, without information or circumstances indicating the name or role of the third person, but merely on the basis of what has been declared in that respect by the tax authorities themselves?

| 3. | Are the provisions of Directive 2006/112 concerning the deduction of VAT to be interpreted as meaning that the tax authorities, even if they do not deny that the financial transaction recorded in the invoice has taken place or that the invoice formally satisfies the legal requirements, may refuse the right to deduct VAT without examining due diligence — virtually basing their decision on strict liability — on the grounds that, because the financial transaction was not performed between the parties mentioned in the invoice, the fact that the content of the invoice lacks verisimilitude precludes, ex hypothesi, examination of due diligence, or rather, in such circumstances, the tax authorities refusing the right to deduct are required also to show that the taxable person wishing to exercise the right to deduct knew of the irregular conduct — designed, as the case may be, to evade tax — of the undertaking with which he maintained contractual relations, or even participated in that irregular conduct? |
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3.

Are the provisions of Directive 2006/112 concerning the deduction of VAT to be interpreted as meaning that the tax authorities, even if they do not deny that the financial transaction recorded in the invoice has taken place or that the invoice formally satisfies the legal requirements, may refuse the right to deduct VAT without examining due diligence — virtually basing their decision on strict liability — on the grounds that, because the financial transaction was not performed between the parties mentioned in the invoice, the fact that the content of the invoice lacks verisimilitude precludes, ex hypothesi, examination of due diligence, or rather, in such circumstances, the tax authorities refusing the right to deduct are required also to show that the taxable person wishing to exercise the right to deduct knew of the irregular conduct — designed, as the case may be, to evade tax — of the undertaking with which he maintained contractual relations, or even participated in that irregular conduct?

| 4. | If the answer to the previous question is in the affirmative, is it compatible with the provisions of Directive 2006/112 and with the principles of fiscal neutrality, legal certainty and proportionality, affirmed by the Court of Justice of the European Union in its case-law, for that legislation to be interpreted as meaning that the due diligence of the addressee of the invoice may be examined only if it can be shown that there was a transaction between the parties, that is to say, if the financial transaction took place between the parties in the manner specified in the invoice, and that there are only other kinds of irregularities, for example formal defects, particularly bearing in mind that the national tax legislation contains provisions relating to invoices with formal defects or invoices issued without any financial transaction? |
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4.

If the answer to the previous question is in the affirmative, is it compatible with the provisions of Directive 2006/112 and with the principles of fiscal neutrality, legal certainty and proportionality, affirmed by the Court of Justice of the European Union in its case-law, for that legislation to be interpreted as meaning that the due diligence of the addressee of the invoice may be examined only if it can be shown that there was a transaction between the parties, that is to say, if the financial transaction took place between the parties in the manner specified in the invoice, and that there are only other kinds of irregularities, for example formal defects, particularly bearing in mind that the national tax legislation contains provisions relating to invoices with formal defects or invoices issued without any financial transaction?

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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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