# C_2023216EN.01002102.xml

| 19.6.2023 | EN | Official Journal of the European Union | C 216/21 |
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19.6.2023

EN

Official Journal of the European Union

C 216/21

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Judgment of the Court (Ninth Chamber) of 4 May 2023 (request for a preliminary ruling from the Varhoven administrativen sad — Bulgaria) — ‘Balgarska telekomunikatsionna kompania’ EAD v Direktor na Direktsia ‘Obzhalvane i danachno-osiguritelna praktika’ — Sofia

(Case C-127/22, (1) Balgarska telekomunikatsionna kompania)

(Reference for a preliminary ruling - Common system of value added tax (VAT) - Directive 2006/112/EC - Article 185 - Adjustment of deductions of input VAT - Goods written off - Subsequent sale as waste - Destruction or disposal duly proved or confirmed)

(2023/C 216/28)

Language of the case: Bulgarian

Referring court

Varhoven administrativen sad

Parties to the main proceedings

Applicant:‘Balgarska telekomunikatsionna kompania’ EAD

Defendant: Direktor na Direktsia ‘Obzhalvane i danachno-osiguritelna praktika’ — Sofia

Operative part of the judgment

| 1. | Article 185(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax
  must be interpreted as meaning that writing off goods which the taxable person considered to have become unusable in the course of his or her usual economic activities, followed by the sale of those goods as waste, which was subject to value added tax (VAT), does not constitute a ‘change ... in the factors used to determine the amount to be deducted’, within the meaning of that provision. |
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1.

Article 185(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax

must be interpreted as meaning that writing off goods which the taxable person considered to have become unusable in the course of his or her usual economic activities, followed by the sale of those goods as waste, which was subject to value added tax (VAT), does not constitute a ‘change ... in the factors used to determine the amount to be deducted’, within the meaning of that provision.

| 2. | Article 185 of Directive 2006/112
  must be interpreted as meaning that writing off goods, which the taxable person considered to have become unusable in the course of his or her usual economic activities, followed by the voluntary destruction of those goods, constitutes a ‘change ... in the factors used to determine the amount to be deducted’, within the meaning of paragraph 1 of that article. However, such a situation constitutes ‘destruction’, within the meaning of the first subparagraph of paragraph 2 of that article, irrespective of its voluntary nature, with the result that that change does not give rise to an adjustment obligation provided that that destruction is duly proved or confirmed and that the goods had objectively lost all usefulness in the taxable person’s economic activities. The duly proven disposal of goods must be treated in the same way as their destruction in so far as it actually entails the irreversible disappearance of those goods. |
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2.

Article 185 of Directive 2006/112

must be interpreted as meaning that writing off goods, which the taxable person considered to have become unusable in the course of his or her usual economic activities, followed by the voluntary destruction of those goods, constitutes a ‘change ... in the factors used to determine the amount to be deducted’, within the meaning of paragraph 1 of that article. However, such a situation constitutes ‘destruction’, within the meaning of the first subparagraph of paragraph 2 of that article, irrespective of its voluntary nature, with the result that that change does not give rise to an adjustment obligation provided that that destruction is duly proved or confirmed and that the goods had objectively lost all usefulness in the taxable person’s economic activities. The duly proven disposal of goods must be treated in the same way as their destruction in so far as it actually entails the irreversible disappearance of those goods.

| 3. | Article 185 of Directive 2006/112
  must be interpreted as meaning that it precludes provisions of national law which provide for the adjustment of input VAT deducted upon acquisition of goods where they have been written off, the taxable person having considered that they had become unusable in the course of his or her usual economic activities and where, subsequently, those goods were either sold subject to VAT or destroyed or disposed of in a way which effectively means that they have disappeared irreversibly, provided that such destruction is duly proved or confirmed and that the goods had objectively lost all usefulness in the taxable person’s economic activities. |
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3.

Article 185 of Directive 2006/112

must be interpreted as meaning that it precludes provisions of national law which provide for the adjustment of input VAT deducted upon acquisition of goods where they have been written off, the taxable person having considered that they had become unusable in the course of his or her usual economic activities and where, subsequently, those goods were either sold subject to VAT or destroyed or disposed of in a way which effectively means that they have disappeared irreversibly, provided that such destruction is duly proved or confirmed and that the goods had objectively lost all usefulness in the taxable person’s economic activities.

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(1)  OJ C 191, 10.5.2022.

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