# C_2020423EN.01001702.xml

| 7.12.2020 | EN | Official Journal of the European Union | C 423/17 |
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7.12.2020

EN

Official Journal of the European Union

C 423/17

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Request for a preliminary ruling from the Fővárosi Törvényszék (Hungary) lodged on 5 August 2020 — MARCAS MC Szolgáltató Zrt. v Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatósága

(Case C-363/20)

(2020/C 423/25)

Language of the case: Hungarian

Referring court

Fővárosi Törvényszék

Parties to the main proceedings

Applicant: MARCAS MC Szolgáltató Zrt.

Defendant: Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatósága

Questions referred

| 1. | Is a practice adopted by a Member State’s tax authority pursuant to which, in the context of an ex-post check on a taxpayer’s return — where no breach of any specific accounting principle or substantive rule of law on the part of the taxpayer was detected in respect of the tax under inspection, and there was no change in the amount of tax due as compared with the amount stated in the returns for the years during which the economic activity took place — the tax authority finds, without giving reasons, that the taxpayer is liable for additional tax purely on the grounds that, in preparing the return, he did not have regard to [certain] principles in the Member State’s Law on Accounting as required by the tax authority, but instead used his discretion to base the return on other principles which he considered applicable to accounts for his economic activity, compatible with the right to a fair trial, recognised as a general principle of law in Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and with the general principles of legal certainty, proportionality and protection of legitimate expectations? |
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1.

Is a practice adopted by a Member State’s tax authority pursuant to which, in the context of an ex-post check on a taxpayer’s return — where no breach of any specific accounting principle or substantive rule of law on the part of the taxpayer was detected in respect of the tax under inspection, and there was no change in the amount of tax due as compared with the amount stated in the returns for the years during which the economic activity took place — the tax authority finds, without giving reasons, that the taxpayer is liable for additional tax purely on the grounds that, in preparing the return, he did not have regard to [certain] principles in the Member State’s Law on Accounting as required by the tax authority, but instead used his discretion to base the return on other principles which he considered applicable to accounts for his economic activity, compatible with the right to a fair trial, recognised as a general principle of law in Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and with the general principles of legal certainty, proportionality and protection of legitimate expectations?

| 2. | In the light of the right to a fair trial established in Article 47 of the Charter and the general principles of legal certainty, proportionality and protection of legitimate expectations enshrined as general principles of EU law, can Article 2(3) and Article 31 of Directive 78/660/EEC (1) (the Fourth Directive) be interpreted as meaning that, in the case of an economic activity which relates to several financial years, if the tax authority replaces the accounting principles chosen by the taxpayer with other accounting principles and, as a result, makes a change to an accounting entry which also affects the returns for adjacent years, the tax authority must extend its inspection to cover the other financial years to which the economic activity relates and which are therefore also affected by the findings in respect of the period under inspection? When carrying out an ex-post check on the taxpayer’s return for a particular year, must the tax authority take into account the entries that were amended in a supplementary declaration for the year prior to the year under examination, which resulted in an overpayment by the taxpayer due to the fact that he paid tax before the date on which it became due; or is a declaration by the tax authority that the taxpayer has a tax debt, in spite of the existence of an overpayment, compatible with the aforesaid principles and with the prohibition of abuse of rights in Article 54 of the Charter? |
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2.

In the light of the right to a fair trial established in Article 47 of the Charter and the general principles of legal certainty, proportionality and protection of legitimate expectations enshrined as general principles of EU law, can Article 2(3) and Article 31 of Directive 78/660/EEC (1) (the Fourth Directive) be interpreted as meaning that, in the case of an economic activity which relates to several financial years, if the tax authority replaces the accounting principles chosen by the taxpayer with other accounting principles and, as a result, makes a change to an accounting entry which also affects the returns for adjacent years, the tax authority must extend its inspection to cover the other financial years to which the economic activity relates and which are therefore also affected by the findings in respect of the period under inspection? When carrying out an ex-post check on the taxpayer’s return for a particular year, must the tax authority take into account the entries that were amended in a supplementary declaration for the year prior to the year under examination, which resulted in an overpayment by the taxpayer due to the fact that he paid tax before the date on which it became due; or is a declaration by the tax authority that the taxpayer has a tax debt, in spite of the existence of an overpayment, compatible with the aforesaid principles and with the prohibition of abuse of rights in Article 54 of the Charter?

| 3. | Is it proportionate to sanction the choice of a potentially incorrect accounting method by declaring the existence of a difference in the amount of tax due, which is classed as a debt, having regard to the fact that this also entails the imposition of a fine — even if only for 10 % of the amount — and a late payment surcharge, if the tax in dispute was paid before it was due and has throughout the entire proceedings been recorded as an overpayment in the applicant’s tax account, with the result that there has been no loss of revenue to the Exchequer, and there is no evidence of an abuse? |
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3.

Is it proportionate to sanction the choice of a potentially incorrect accounting method by declaring the existence of a difference in the amount of tax due, which is classed as a debt, having regard to the fact that this also entails the imposition of a fine — even if only for 10 % of the amount — and a late payment surcharge, if the tax in dispute was paid before it was due and has throughout the entire proceedings been recorded as an overpayment in the applicant’s tax account, with the result that there has been no loss of revenue to the Exchequer, and there is no evidence of an abuse?

| 4. | Can the principle of (protection of) legitimate expectations be interpreted as meaning that the objective basis for an expectation, that is, the taxpayer’s expectation with respect to accounting treatment, is well founded if the tax authority has previously carried out an inspection of the taxpayer in the course of which it found that the keeping of receipts, books and records complied with requirements — even if there was no explicit statement to this effect or it is merely implicit in the tax authority’s conduct — or is the taxpayer entitled to rely on the principle of legitimate expectations only if the tax authority carries out an ex-post check on the tax returns which results in a closed period, the check covers all types of taxes, and the tax authority expressly approves the taxpayer’s accounting practices? Is the tax authority acting in accordance with the principles of legal certainty and protection of legitimate expectations if, in subsequent decisions, it attributes certain legal and tax consequences to accounting irregularities and does not accept that the applicant had grounds to believe that its earlier accounting practice was correct, on the grounds that the earlier inspection was purely formal or not comprehensive, or that there was no express approval? |
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4.

Can the principle of (protection of) legitimate expectations be interpreted as meaning that the objective basis for an expectation, that is, the taxpayer’s expectation with respect to accounting treatment, is well founded if the tax authority has previously carried out an inspection of the taxpayer in the course of which it found that the keeping of receipts, books and records complied with requirements — even if there was no explicit statement to this effect or it is merely implicit in the tax authority’s conduct — or is the taxpayer entitled to rely on the principle of legitimate expectations only if the tax authority carries out an ex-post check on the tax returns which results in a closed period, the check covers all types of taxes, and the tax authority expressly approves the taxpayer’s accounting practices? Is the tax authority acting in accordance with the principles of legal certainty and protection of legitimate expectations if, in subsequent decisions, it attributes certain legal and tax consequences to accounting irregularities and does not accept that the applicant had grounds to believe that its earlier accounting practice was correct, on the grounds that the earlier inspection was purely formal or not comprehensive, or that there was no express approval?

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(1)  Fourth Council Directive 78/660/EEC of 25 July 1978 based on Article 54(3)(g) of the Treaty on the annual accounts of certain types of companies (OJ 1978 L 222, p. 11, Special edition in Hungarian Chapter 17 Volume 001 P. 21).

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