# C_2013171EN.01001202.xml

| 15.6.2013 | EN | Official Journal of the European Union | C 171/12 |
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15.6.2013

EN

Official Journal of the European Union

C 171/12

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Request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 18 March 2013 — Staatssecretaris van Financiën, other party: Schoenimport ‘Italmoda’ Mariano Previti

(Case C-131/13)

2013/C 171/24

Language of the case: Dutch

Referring court

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Parties to the main proceedings

Appellant: Staatssecretaris van Financiën

Appellant:

Other party: Schoenimport ‘Italmoda’ Mariano Previti

Other party:

Questions referred

Questions referred

| 1. | Should the national authorities and courts, on the basis of the law of the European Union, refuse to apply the exemption pertaining to an intra-Community supply, the right to the deduction of VAT in respect of the purchase of goods which, after the purchase, were dispatched to another Member State, or the refund of VAT pursuant to the application of the second sentence of Article 28b(A)(2) of the Sixth Directive, (1) when, based on objective data, it has been established that there has been VAT evasion in respect of the goods concerned, and that the taxable person knew, or should have known, that it had participated therein, if national law does not make provision for the refusal of the exemption, the deduction or the refund under those circumstances? |
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1.

Should the national authorities and courts, on the basis of the law of the European Union, refuse to apply the exemption pertaining to an intra-Community supply, the right to the deduction of VAT in respect of the purchase of goods which, after the purchase, were dispatched to another Member State, or the refund of VAT pursuant to the application of the second sentence of Article 28b(A)(2) of the Sixth Directive, (1) when, based on objective data, it has been established that there has been VAT evasion in respect of the goods concerned, and that the taxable person knew, or should have known, that it had participated therein, if national law does not make provision for the refusal of the exemption, the deduction or the refund under those circumstances?

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| 2. | If the previous question is answered in the affirmative, should the aforementioned exemption, deduction or refund also be refused if the VAT evasion occurred in another Member State (other than the Member State from which the goods were dispatched) and the taxable person was or should have been aware of the VAT evasion, while the taxable person in the Member State from which the goods were dispatched has met all the (formal) conditions which national statutory provisions impose on the exemption, the deduction or the refund, and it has always provided the tax authorities in that Member State with all the required information in respect of the goods, the dispatch and the persons acquiring the goods in the Member State of arrival of the goods? |
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2.

If the previous question is answered in the affirmative, should the aforementioned exemption, deduction or refund also be refused if the VAT evasion occurred in another Member State (other than the Member State from which the goods were dispatched) and the taxable person was or should have been aware of the VAT evasion, while the taxable person in the Member State from which the goods were dispatched has met all the (formal) conditions which national statutory provisions impose on the exemption, the deduction or the refund, and it has always provided the tax authorities in that Member State with all the required information in respect of the goods, the dispatch and the persons acquiring the goods in the Member State of arrival of the goods?

| 3. | If Question 1 is answered in the negative, what should be understood by ‘subject to’ in (the final part of) the first sentence of Article 28b(A)(2): the declaration in the statutorily prescribed VAT returns of the VAT payable in respect of intra-Community acquisitions in the Member State of arrival, or — in the absence of such a declaration — also the measures adopted by the tax authorities of the Member State of arrival to regularise the absence of that declaration? When answering that question, is it significant whether the transaction concerned forms part of a chain of transactions aimed at VAT evasion in the country of arrival and the taxable person was aware or should have been aware of it? |
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3.

If Question 1 is answered in the negative, what should be understood by ‘subject to’ in (the final part of) the first sentence of Article 28b(A)(2): the declaration in the statutorily prescribed VAT returns of the VAT payable in respect of intra-Community acquisitions in the Member State of arrival, or — in the absence of such a declaration — also the measures adopted by the tax authorities of the Member State of arrival to regularise the absence of that declaration? When answering that question, is it significant whether the transaction concerned forms part of a chain of transactions aimed at VAT evasion in the country of arrival and the taxable person was aware or should have been aware of it?

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(1)  Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1).

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