Opinion of the Advocate General — ECLI:EU:C:2011:592
Date: 2011-09-15
Language of the case: Polish
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Poland

Summary of the Judgment 1. Tax provisions — Harmonisation of laws — Turnover taxes — Common system of value added tax — Deduction of input tax — Origin and extent of the right to deduct — Investment costs incurred by the partners with the view to the creation of, and for the purposes of, a partnership not yet registered (Council Directive 2006/112, Arts 9, 168 and 169) 2. Tax provisions — Harmonisation of laws — Turnover taxes — Common system of value added tax — Deduction of input tax — Obligations of the taxable person — Holding of an invoice containing certain information (Council Directive 2006/112, Arts 168 and 178(a)) 1. Articles 9, 168 and 169 of Directive 2006/112 on the common system of value added tax must be interpreted as precluding national legislation which permits neither partners nor their partnership to exercise the right to deduct input value added tax on investment costs incurred by those partners, before the creation and registration of the partnership, for the purposes of and with the view to its economic activity. Those partners may be considered to be taxable persons for the purposes of value added tax and are therefore, in principle, entitled to exercise the right to deduct input tax. In so far as, under national legislation, the partners are unable to rely on the taxable transactions effected by the partnership in order to relieve the cost of the value added tax on investment transactions effected for the purposes of and with the view to the activity of that partnership, the latter must, in order to ensure the neutrality of taxation, be entitled to take account of those investment transactions when deducting value added tax. (see paras 31, 35, 38, operative part 1) 2. Articles 168 and 178(a) of Directive 2006/112 on the common system of value added tax must be interpreted as precluding national legislation under which the input value added tax paid cannot be deducted by a partnership when the invoice, drawn up before the registration and identification of the partnership for the purposes of value added tax, was issued in the name of the partners of that partnership, whereas the material conditions laid down in Article 168(a) appear to be satisfied so that, inter alia, that partnership can exercise the right to deduct the value added tax and the data necessary to ensure a reliable and efficient collection of the tax is established. Since the reason that it is impossible for such a partnership to exercise its right to deduct the input tax paid is that, at the date of issue of the invoice, that partnership was not yet registered or identified for the purposes of value added tax and the invoice had, therefore, been drawn up in the name of the partners, even though those who paid the input tax and those who make up that partnership are one and the same legal entity, that impossibility must be considered to be caused by a purely formal obligation. Compliance with such an obligation is not to be required when that requirement would have the effect of rendering utterly nugatory the right to deduct, and therefore of calling into question the neutrality of value added tax. (see paras 44-46, 49, 50, operative part 2)