# C_2013079EN.01001001.xml

| 16.3.2013 | EN | Official Journal of the European Union | C 79/10 |
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16.3.2013

EN

Official Journal of the European Union

C 79/10

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Request for a preliminary ruling from the Administrativen Sad Sofia-grad (Bulgaria) lodged on 14 January 2013 — ‘Maks Pen’ EOOD v Direktor na Direktsia ‘Obzhalvane i izpalnenie na proizvodstvoto’ pri Tsentralno Upravlenie na Natsionalnata Agentsia po Prihodite — gr. Sofia

(Case C-18/13)

2013/C 79/17

Language of the case: Bulgarian

Referring court

Referring court

Administrativen Sad Sofia-grad

Parties to the main proceedings

Parties to the main proceedings

Applicant:‘Maks Pen’ EOOD

Applicant:

Defendant: Direktor na Direktsia „Obzhalvane i izpalnenie na proizvodstvoto“

Defendant:

Questions referred

Questions referred

| 1. | Are circumstances of fact in which the service provider named on the invoice or its subcontractor do not have the personnel, equipment or assets that would be required to provide the service, the costs of actually providing the service are not documented and no such costs are entered in its accounts, and documents submitted as evidence of the reciprocal performance owed and of provision of the service in respect of which a VAT invoice was issued and the right to deduct input tax was exercised, in the form of a contract and a record of acceptance and delivery, were false in so far as concerns the status as issuer of the persons which signed them in the name of the service provider, to be treated as relating to ‘tax evasion’ for the purposes of the right of deduction under European Union law? |
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1.

Are circumstances of fact in which the service provider named on the invoice or its subcontractor do not have the personnel, equipment or assets that would be required to provide the service, the costs of actually providing the service are not documented and no such costs are entered in its accounts, and documents submitted as evidence of the reciprocal performance owed and of provision of the service in respect of which a VAT invoice was issued and the right to deduct input tax was exercised, in the form of a contract and a record of acceptance and delivery, were false in so far as concerns the status as issuer of the persons which signed them in the name of the service provider, to be treated as relating to ‘tax evasion’ for the purposes of the right of deduction under European Union law?

| 2. | Does it follow from the obligation incumbent on a court under European Union law and the case-law of the Court of Justice of the European Union to refuse the right to deduct input tax in the case of tax evasion that a national court also has a duty to establish the existence of tax evasion of its own motion, on the basis of the facts of the main proceedings, to the extent that, taking into account its obligation under national law to give a ruling on the substance of the dispute, to comply with the prohibition on less favourable treatment of the claimant, to observe the principles of the right to an effective legal remedy and legal certainty and to apply the relevant legal provisions of its own motion, it must assess new arguments of fact put before it for the first time, as well as all evidence, including that relating to fictitious transactions, false documents and documents the contents of which are inaccurate? |
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2.

Does it follow from the obligation incumbent on a court under European Union law and the case-law of the Court of Justice of the European Union to refuse the right to deduct input tax in the case of tax evasion that a national court also has a duty to establish the existence of tax evasion of its own motion, on the basis of the facts of the main proceedings, to the extent that, taking into account its obligation under national law to give a ruling on the substance of the dispute, to comply with the prohibition on less favourable treatment of the claimant, to observe the principles of the right to an effective legal remedy and legal certainty and to apply the relevant legal provisions of its own motion, it must assess new arguments of fact put before it for the first time, as well as all evidence, including that relating to fictitious transactions, false documents and documents the contents of which are inaccurate?

| 3. | In the context of the obligation of the court to refuse the right to deduct input tax in the event of tax evasion, does it follow from point (a) of the first paragraph of Article 178 of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax that the service must actually have been provided by the service provider named on the invoice or its subcontractor in order for the right of deduction to be exercised? |
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3.

In the context of the obligation of the court to refuse the right to deduct input tax in the event of tax evasion, does it follow from point (a) of the first paragraph of Article 178 of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax that the service must actually have been provided by the service provider named on the invoice or its subcontractor in order for the right of deduction to be exercised?

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| 4. | Does the requirement under Article 242 of Directive 2006/112 to keep detailed accounts for the purposes of verification of the right to deduct input tax mean that the corresponding national accounting legislation of the Member State in question, which provides for consistency with the international accounting standards applicable under European Union law, must also be observed, or does it refer only to the requirement to keep the VAT accounting documents prescribed in that directive: invoices, VAT returns and recapitulative statements?
  In the event that the second alternative is correct, an answer to the following question will also be required:
  Does it follow from the requirement in point (6) of the first paragraph of Article 226(6) of Directive 2006/112 that invoices must state the ‘extent and nature of the services rendered’ that, in the case of services, invoices or a document issued in connection with them must contain details of the actual provision of the service, that is to say objective, verifiable facts that serve as proof both that the service was in fact provided and that it was rendered by the service provider named on the invoice? |
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4.

Does the requirement under Article 242 of Directive 2006/112 to keep detailed accounts for the purposes of verification of the right to deduct input tax mean that the corresponding national accounting legislation of the Member State in question, which provides for consistency with the international accounting standards applicable under European Union law, must also be observed, or does it refer only to the requirement to keep the VAT accounting documents prescribed in that directive: invoices, VAT returns and recapitulative statements?

In the event that the second alternative is correct, an answer to the following question will also be required:

Does it follow from the requirement in point (6) of the first paragraph of Article 226(6) of Directive 2006/112 that invoices must state the ‘extent and nature of the services rendered’ that, in the case of services, invoices or a document issued in connection with them must contain details of the actual provision of the service, that is to say objective, verifiable facts that serve as proof both that the service was in fact provided and that it was rendered by the service provider named on the invoice?

| 5. | Is Article 242 of Directive 2006/112, which lays down the requirement to keep detailed accounts for the purposes of verifying the right to deduct input tax, in conjunction with Article 63 and Article 273 of that directive, to be interpreted as meaning that it does not preclude a national provision under which a service is deemed to have been provided at the time when the conditions governing recognition of the revenue from that service are satisfied in accordance with the relevant accounting legislation, which provides for consistency with the international accounting standards applicable under European Union law and the principles of accounting evidence for business transactions, the precedence of substance over form and the comparability of revenue and costs? |
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5.

Is Article 242 of Directive 2006/112, which lays down the requirement to keep detailed accounts for the purposes of verifying the right to deduct input tax, in conjunction with Article 63 and Article 273 of that directive, to be interpreted as meaning that it does not preclude a national provision under which a service is deemed to have been provided at the time when the conditions governing recognition of the revenue from that service are satisfied in accordance with the relevant accounting legislation, which provides for consistency with the international accounting standards applicable under European Union law and the principles of accounting evidence for business transactions, the precedence of substance over form and the comparability of revenue and costs?

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

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