Judgment — ECLI:EU:C:2024:1000
Date: 2024-12-05
Language of the case: Portuguese
Court formation: Eighth Chamber
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Portugal

Translation C-680/23 – 1 
Case C-680/23 
Request for a preliminary ruling 
Date lodged: 
14 November 2023 
Referring court: 
Tribunal Administrativo e Fiscal do Funchal (Portugal) 
Date of the decision to refer: 
13 November 2023 
Applicant: 
Modexel – Consultores e Serviços, SA 
Defendant: 
Autoridade Tributária e Assuntos Fiscais da Região Autónoma da 
Madeira 
  
[…] 
TRIBUNAL ADMINISTRATIVO E FISCAL DO FUNCHAL 
(ADMINISTRATIVE AND TAX COURT, FUNCHAL, PORTUGAL) 
ORGANISATIONAL UNIT 
[…] Administrative proceedings 
[…] Applicant: Modexel – Consultores e 
Serviços, SA 
Defendant: AT – Tax and Customs 
Authority 
[…] 
 
REQUEST FOR A PRELIMINARY RULING 
For the attention of the Court of Justice of the European Union 
I. Referring court 
EN 
REQUEST FOR A PRELIMINARY RULING OF 13. 11. 2023 – CASE C-680/23 
 
2  
Tribunal Administrativo e Fiscal do Funchal (Administrative and Tax Court, 
Funchal) […] 
II. Parties 
Modexel – Consultores e Serviços, SA […] 
v 
Tax authority of the Autonomous Region of Madeira […] 
III. Subject matter of the main proceedings and relevant facts 
1. Modexel – Consultores e Serviços, SA, filed a declaration of cessation of 
activity with effect from 28 February 2015. 
2. At the time of cessation of activity, it declared a balance in its favour in respect 
of valued added tax (VAT) in the amount of EUR 12 456.20. 
3. It recommenced its activity on 10 May 2016, filing the appropriate declaration 
of recommencement of activity. 
4. When it recommenced its activity, it deducted the amount of the balance in its 
favour, seeking to offset that amount in the first return filed after it recommenced 
its activity. 
5. The Tax Authority of the Autonomous Region of Madeira refused to allow it to 
do so, arguing that Modexel – Consultores e Serviços, SA should have applied for 
a refund of the balance in its favour within 12 months from the date on which it 
ceased its activity and that, since it had not done so, that amount had reverted to 
the Portuguese State. 
IV. Relevant provisions of national and European Union law 
Article 22 of the VAT Code: 
4 – Where the amount of the appropriate deductions exceeds the amount of tax 
due in the same [assessment] period, the excess may be offset in following 
assessment periods.  
5 – If, after 12 months have elapsed since the period in which the excess arose, 
there is still a balance in favour of a taxable person of more than EUR 250, that 
taxable person may apply for a refund of that balance. 
6 – By way of derogation from the previous paragraph, a taxable person may 
apply for a refund before the end of the 12-month period if that person ceases its 
activity or becomes subject to Articles 29(3) and (4), 54(1) or 61(1), provided that 
the amount due to be refunded is equal to or more than EUR 25, and also if the 
MODEXEL 
 
3 
balance in its favour exceeds EUR 3 000. (As amended by Lei No 10/2009, de 
10/03 (Law No 10/2009 of 10 March 2009)) 
Article 183 of the VAT Directive 
Where, for a given tax period, the amount of deductions exceeds the amount of 
VAT due, the Member States may, in accordance with conditions which they shall 
determine, either make a refund or carry the excess forward to the following 
period. 
However, Member States may refuse to refund or carry forward if the amount of 
the excess is insignificant. 
V. Reasons why the referring court is uncertain about the interpretation or 
validity of European Union law 
In the light of the facts at issue in these proceedings, this court takes the view that 
the interpretation of Article 183 of the VAT Directive is open to question as 
regards the interpretation of the expression ‘the following period’. 
In other words, the dispute concerns whether, as the Tax authority of the 
Autonomous Region of Madeira maintains, that expression is limited, literally, to 
the following tax period or whether, as a result of the practice adopted by 
Modexel – Consultores e Serviços, SA, there may be a time lapse between those 
two periods on account of the cessation of activity (in the period in which the 
excess is carried forward) and of the subsequent recommencement of that activity 
(with the deduction being made in the period in which the activity is 
recommenced). 
VI. Questions referred for a preliminary ruling 
‘1) Must the expression “the following period” in Article 183 of the VAT 
Directive be interpreted as referring literally to the period which immediately 
follows in the calendar year? 
2) If the answer to question 1 is in the negative, where an undertaking ceases 
its activity and subsequently recommences that activity, with a period of 
15 months having elapsed between those two points in time, is that undertaking 
entitled to deduct the amount of the excess which it carried forward when it 
ceased its activity in the first assessment that it files after recommencing its 
activity?’ 
Funchal, 13 November 2023 
[…] [national procedure]