# C_2015320EN.01000701.xml

| 28.9.2015 | EN | Official Journal of the European Union | C 320/7 |
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28.9.2015

EN

Official Journal of the European Union

C 320/7

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Order of the Court (Tenth Chamber) of 15 July 2015 (request for a preliminary ruling from the Administrativen sad — Varna (Bulgaria)) — ‘Koela-N’ EOOD v Direktor na Direktsia ‘Obzhalvane i danachno-osiguritelna praktika’ Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite

(Case C-159/14) (1)

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((Reference for a preliminary ruling - Article 99 of the Rules of Procedure of the Court of Justice - Taxation - VAT - Directive 2006/112/EC - Principle of fiscal neutrality - Deduction of input VAT - ‘Supply of goods’ - Condition for the existence of a supply of goods - Direct transfer of goods from a supplier to a third party by a carrier - No evidence of actual possession of the goods by the direct supplier - Lack of cooperation between the suppliers and the tax authorities - No transhipment of goods - Evidence justifying suspicions of tax fraud))

(2015/C 320/09)

Language of the case: Bulgarian

Referring court

Referring court

Administrativen sad — Varna

Parties to the main proceedings

Parties to the main proceedings

Applicant:‘Koela-N’ EOOD

Applicant:

Defendant: Direktor na Direktsia ‘Obzhalvane i danachno-osiguritelna praktika’ Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite

Defendant:

Operative part of the order

Operative part of the order

| 1. | Article 14(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as precluding the tax authorities of a Member State from finding that a supply of goods has not taken place, with the result that the value added tax paid at the time of acquiring those goods cannot be deducted by the buyer, on the ground that that person has not received the goods which it has purchased but has sent them directly to a third party to whom it has resold them, or on the ground that the buyer’s direct supplier has not received the goods which it has purchased but has sent them directly to that buyer. |
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Article 14(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as precluding the tax authorities of a Member State from finding that a supply of goods has not taken place, with the result that the value added tax paid at the time of acquiring those goods cannot be deducted by the buyer, on the ground that that person has not received the goods which it has purchased but has sent them directly to a third party to whom it has resold them, or on the ground that the buyer’s direct supplier has not received the goods which it has purchased but has sent them directly to that buyer.

| 2. | Neither the fact that a taxable person’s upstream suppliers in the supply chain have not cooperated with the tax authorities nor the fact that there has been no transhipment of the goods concerned constitutes, in itself, sufficient objective evidence for concluding that that taxable person knew, or ought to have known, that the transaction relied on as its basis for the right to deduct value added tax was connected with tax fraud. Nevertheless, those two facts constitute objective evidence which may be taken into account, in the context of an overall assessment of all the facts and circumstances of the case, in order to determine whether the taxable person knew, or ought to have known, that the transaction relied on as its basis for the right to deduct was connected with tax fraud. |
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2.

Neither the fact that a taxable person’s upstream suppliers in the supply chain have not cooperated with the tax authorities nor the fact that there has been no transhipment of the goods concerned constitutes, in itself, sufficient objective evidence for concluding that that taxable person knew, or ought to have known, that the transaction relied on as its basis for the right to deduct value added tax was connected with tax fraud. Nevertheless, those two facts constitute objective evidence which may be taken into account, in the context of an overall assessment of all the facts and circumstances of the case, in order to determine whether the taxable person knew, or ought to have known, that the transaction relied on as its basis for the right to deduct was connected with tax fraud.

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(1)  OJ C 175, 10.6.2014.

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