Opinion of the Advocate General — ECLI:EU:C:2011:353
Date: 2011-05-26
Language of the case: Hungarian
Subject matter: Taxation;Value added tax
Procedure: Action for failure to fulfil obligations - successful
Origin: Hungary

Summary of the Judgment Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Deduction of input tax – Refund of excess (Council Directive 2006/112, art. 183) A Member State fails to fulfil its obligations under Directive 2006/112/EC on the common system of value added tax by requiring taxable persons whose tax declaration for a given tax period records an excess within the meaning of Article 183 of Directive 2006/112 to carry forward that excess or a part of it to the following tax period if the taxable person has not paid the supplier the full amount for the purchase in question, and on account of that fact, as a result of that requirement, certain taxable persons whose tax declarations regularly record such an excess may be required more than once to carry forward the excess to the following tax period. Under the system set up by Directive 2006/112, the chargeability of VAT and the creation and exercise of the right to deduct are, in principle, independent of whether or not the consideration, including VAT, due for a transaction has already been paid. Moreover, under the same directive, the creation of the right to deduct is subject only in certain particular cases covered by that directive to the condition that the consideration due for the transaction on which the deductible VAT arises should already have been paid. Apart from those particular cases, that right to deduct exists independently of that condition. The fact of making the refund of a deductible VAT excess subject to that condition, that refund thus constituting the stage following the creation of that right, is liable to have the same effects on the right to deduct as the application of the same condition when that right arises. Accordingly, it is such as to call into question the useful effect of that right to deduct. Consequently, the payment of consideration due for the transaction giving rise to deductible VAT cannot constitute a condition, within the meaning of Article 183 of Directive 2006/112, which the Member States may lay down for the refund of a deductible VAT excess. (see paras 48, 52-53, 56, operative part)