# C_2013129EN.01001101.xml

| 4.5.2013 | EN | Official Journal of the European Union | C 129/11 |
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4.5.2013

EN

Official Journal of the European Union

C 129/11

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Request for a preliminary ruling from the Administrativen sad — Veliko Tarnovo (Bulgaria) lodged on 4 March 2013 — ‘FIRIN’ OOD v Direktsia ‘Obzhalvane i danachno-osiguritelna praktika’ — Veliko Tarnovo

(Case C-107/13)

2013/C 129/19

Language of the case: Bulgarian

Referring court

Referring court

Administrativen sad — Veliko Tarnovo

Parties to the main proceedings

Parties to the main proceedings

Applicant:‘FIRIN’ OOD

Applicant:

Defendant: Direktsia ‘Obzhalvane i danachno-osiguritelna praktika’ — Veliko Tarnovo

Defendant:

Questions referred

Questions referred

| 1. | In cases such as that in the main proceedings, in which value added tax connected with a payment made in advance for a future clearly defined taxable supply of goods is immediately and effectively deducted, are the provisions of Article 168(a), in conjunction with Article 65, Article 90(1) and Article 185(1), of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax to be consistently interpreted as meaning that, in light of a failure, for objective and/or subjective reasons, to render the principal counter-performance in accordance with the terms and conditions of supply, the right to deduct input tax at the date on which it is exercised must be refused? |
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1.

In cases such as that in the main proceedings, in which value added tax connected with a payment made in advance for a future clearly defined taxable supply of goods is immediately and effectively deducted, are the provisions of Article 168(a), in conjunction with Article 65, Article 90(1) and Article 185(1), of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax to be consistently interpreted as meaning that, in light of a failure, for objective and/or subjective reasons, to render the principal counter-performance in accordance with the terms and conditions of supply, the right to deduct input tax at the date on which it is exercised must be refused?

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| 2. | Does it follow from such a consistent interpretation, having regard to the principle of the neutrality of value added tax, that in this situation the supplier’s objective possibility of adjusting the value added tax charged and/or the basis of assessment of the tax on the invoice in the manner provided for under national law is (or is not) significant; and how might such an adjustment affect the refusal to allow the original deduction of input tax? |
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2.

Does it follow from such a consistent interpretation, having regard to the principle of the neutrality of value added tax, that in this situation the supplier’s objective possibility of adjusting the value added tax charged and/or the basis of assessment of the tax on the invoice in the manner provided for under national law is (or is not) significant; and how might such an adjustment affect the refusal to allow the original deduction of input tax?

| 3. | In the light also of recital 44 in the preamble to Directive 2006/112, is Article 205, in conjunction with Article 168(a) and Article 193, to be interpreted as meaning that the Member States are permitted to refuse to allow the recipient of a supply to deduct input tax by applying only such criteria as they themselves have laid down in their national legislation, according to which a liability to tax is imposed on a person other than the taxable person where in such a case the ultimate tax outcome would differ from the outcome if the rules established by the Member State had been strictly observed? |
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3.

In the light also of recital 44 in the preamble to Directive 2006/112, is Article 205, in conjunction with Article 168(a) and Article 193, to be interpreted as meaning that the Member States are permitted to refuse to allow the recipient of a supply to deduct input tax by applying only such criteria as they themselves have laid down in their national legislation, according to which a liability to tax is imposed on a person other than the taxable person where in such a case the ultimate tax outcome would differ from the outcome if the rules established by the Member State had been strictly observed?

| 4. | If the answer to the third question should be in the affirmative: are national legal provisions such as those in the main proceedings permissible in the context of the application of Article 205 of Directive 2006/112 and compatible with the principles of effectiveness and proportionality if they introduce joint and several liability for the payment of value added tax by reference to suppositions that are not based on objective facts that can be directly established but on expressed precepts of civil law, disputes in respect of which are conclusively settled on other legal grounds? |
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4.

If the answer to the third question should be in the affirmative: are national legal provisions such as those in the main proceedings permissible in the context of the application of Article 205 of Directive 2006/112 and compatible with the principles of effectiveness and proportionality if they introduce joint and several liability for the payment of value added tax by reference to suppositions that are not based on objective facts that can be directly established but on expressed precepts of civil law, disputes in respect of which are conclusively settled on other legal grounds?

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(1)  OJ 2006 L 347, p. 1.

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