# C_2019423EN.01001701.xml

| 16.12.2019 | EN | Official Journal of the European Union | C 423/17 |
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16.12.2019

EN

Official Journal of the European Union

C 423/17

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Judgment of the Court (Tenth Chamber) of 17 October 2019 (request for a preliminary ruling from the Naczelny Sąd Administracyjny — Poland) — Unitel Sp. z o.o. w Warszawie v Dyrektor Izby Skarbowej w Warszawie

(Case C-653/18) (1)

(Reference for a preliminary ruling - Taxation - Value added tax (VAT) - Directive 2006/112/EC - Article 146 - Exemptions on exportation - Concept of ‘supply of goods’ - Article 131 - Conditions laid down by the Member States - Principle of proportionality - Principle of fiscal neutrality - Evidence - Tax evasion - Practice of a Member State consisting in refusing the right to exemption where the person acquiring the goods exported is not identified)

(2019/C 423/21)

Language of the case: Polish

Referring court

Naczelny Sąd Administracyjny

Parties to the main proceedings

Appellant: Unitel Sp. z o.o. w Warszawie

Respondent: Dyrektor Izby Skarbowej w Warszawie

Operative part of the judgment

| 1. | Article 146(1)(a) and (b) and Article 131 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax and the principles of fiscal neutrality and proportionality must be interpreted as precluding a national practice, such as that at issue in the main proceedings, which consists in considering in all cases that there is no supply of goods, within the meaning of that former provision, and in refusing as a result the value added tax (VAT) exemption, where the goods concerned were exported to a destination outside the European Union and where, following their exportation, the tax authorities found that the person acquiring those goods was not the person stated on the invoice issued by the taxable person but another entity which has not been identified. In such circumstances, the VAT exemption provided for in Article 146(1)(a) and (b) of that directive must be refused if the failure to identify the person actually acquiring the goods prevents it from being proved that the transaction at issue constitutes a supply of goods within the meaning of that provision or if it is established that that taxable person knew or ought to have known that that transaction was part of a fraud committed to the detriment of the common system of VAT. |
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1.

Article 146(1)(a) and (b) and Article 131 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax and the principles of fiscal neutrality and proportionality must be interpreted as precluding a national practice, such as that at issue in the main proceedings, which consists in considering in all cases that there is no supply of goods, within the meaning of that former provision, and in refusing as a result the value added tax (VAT) exemption, where the goods concerned were exported to a destination outside the European Union and where, following their exportation, the tax authorities found that the person acquiring those goods was not the person stated on the invoice issued by the taxable person but another entity which has not been identified. In such circumstances, the VAT exemption provided for in Article 146(1)(a) and (b) of that directive must be refused if the failure to identify the person actually acquiring the goods prevents it from being proved that the transaction at issue constitutes a supply of goods within the meaning of that provision or if it is established that that taxable person knew or ought to have known that that transaction was part of a fraud committed to the detriment of the common system of VAT.

| 2. | Directive 2006/112 must be interpreted as meaning that where, in those circumstances, there is a refusal to grant the value added tax (VAT) exemption provided for in Article 146(1)(a) and (b) of Directive 2006/112, the transaction in question should be considered not to constitute a taxable transaction and, accordingly, not to confer entitlement to the deduction of input VAT. |
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2.

Directive 2006/112 must be interpreted as meaning that where, in those circumstances, there is a refusal to grant the value added tax (VAT) exemption provided for in Article 146(1)(a) and (b) of Directive 2006/112, the transaction in question should be considered not to constitute a taxable transaction and, accordingly, not to confer entitlement to the deduction of input VAT.

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(1)  OJ C 44, 4.2.2019.

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