Order — ECLI:EU:C:2018:1042
Date: 2018-12-13
Language of the case: Polish
Court formation: Tenth Chamber
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Poland

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
27 July 2018 
Referring court: 
Wojewódzki Sąd Administracyjny we Wrocławiu (Poland) 
Date of decision to refer: 
25 April 2018 
Appellant: 
Mennica Wrocławska sp. z o.o. 
Respondent: 
Dyrektor Izby Administracji Skarbowej we Wrocławiu (previously: 
Dyrektor Izby Skarbowej we Wrocławiu) 
  
Subject matter of the main proceedings 
Application to the Wojewódzki Sąd Administracyjny we Wrocławiu (Regional 
Administrative Court, Wrocław) for annulment of the decision upholding the 
decision of the tax authority of first instance establishing liability on the part of 
Mennica Wrocławska (hereinafter: ‘the party concerned’ or ‘the appellant’) for tax 
on goods and services for February and March 2013 in the amount of PLN 18 142 
and PLN 17 090 respectively. Settlement of VAT invoices issued by Mennica 
Wrocławska incorrectly indicating the nature of goods. 
Subject matter and legal basis of the request 
Compatibility of national practice refusing the right to deduct value added tax 
(VAT) from invoices incorrectly indicating the nature of the goods pursuant to 
Articles 168, 178(a) and 226(6) 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. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-491/18 
 
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Question referred for a preliminary ruling 
Do the provisions of Council Directive 2006/112/EC of 28 November 2006 on the 
common system of VAT (OJ 2006 L 347, p. 1), in particular Articles 168, 178(a) 
and 226(6) thereof, and the principles of the VAT system, including, in particular, 
the principles of tax neutrality and proportionality, preclude a national practice 
which refuses the right to deduct VAT from invoices which incorrectly indicate 
the nature of the goods, despite the fact that in the course of the tax proceedings 
(before the decision was taken) the taxable person submitted all the necessary 
clarifications and background documents attesting to the existence and detailed 
characteristics of the goods which were the subject of the transaction, and which 
were subsequently accepted by the tax authorities in the course of the tax 
proceedings, and no tax fraud was found to have occurred? 
Provisions of EU law relied on 
Council Directive 2006/112/EC of 28 November 2006 on the common system of 
value added tax: Articles 168(a), 178(a) and 226(6) 
Provisions of national law relied on 
Ustawa — Ordynacja podatkowa (Law establishing the Tax Code) of 29 August 
1997 (Dziennik Ustaw of 2015, item 613, as amended; hereinafter: ‘the Tax 
Code’): Articles 81b(1)(1) and 81b(2) 
Ustawa o podatku od towarów i usług (Law on tax on goods and services) of 
11 March 2004 (Dziennik Ustaw of 2011, No 177, item 1054, as amended; 
hereinafter: ‘the Law on VAT’): Articles 17(1)(7), 86(1), 86(2)(1)(a), 86(10)(1), 
88(3a)(4)(a), 88(3a)(4)(b), 88(3a)(7) and 106(1) 
Rozporządzenie Ministra Finansów z dnia 28 marca 2011 r. w sprawie zwrotu 
podatku niektórym podatnikom, wystawiania faktur, sposobu ich przechowywania 
oraz listy towarów i usług, do których nie mają zastosowania zwolnienia od 
podatku od towarów i usług (Decree of the Minister for Finance of 28 March 2011 
on the refund of tax to certain taxable persons, the issue of invoices and the 
method for storing them, and the list of goods and services to which the 
exemptions from the tax on goods and services do not apply) (Dziennik Ustaw of 
2011, No 68, item 360; hereinafter: ‘the ministerial decree’): Sections 14(1) and 
15(1) 
Succinct presentation of the facts and procedure 
1 By decision of 11 March [2016] the Director of the Izba Skarbowa we Wrocławiu 
(Director of the Tax Chamber in Wrocław) (now the Director of the Izba 
Administracji Skarbowej we Wrocławiu (Director of the Tax Administration in 
MENNICA WROCŁAWSKA 
 
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Wrocław)) upheld a decision of the Head of the Dolnośląski Urzęd Skarbowy we 
Wrocławiu (Lower Silesia Tax Office in Wrocław) of 27 July 2015 establishing 
liability on the part of Mennica Wrocławska for tax on goods and services for 
February and March 2013 in the amounts of PLN 18 142 and PLN 17 090 
respectively. 
2 The subject matter of the dispute between the tax authorities and the party 
concerned was the settlement of VAT invoices issued by Mennica Wrocławska — 
Dystrybucja Sp. z o.o. (hereinafter: ‘the contractor’). There are two types of 
contested VAT invoice from the above person documenting two different 
transaction arrangements. The first group of VAT invoices stated the name of the 
goods concerned as ‘scrap gold’ when they were in fact ‘gold granules’. The 
second group of invoices stated the name of the goods as ‘scrap gold’ when they 
were in fact ‘gold granules’ (94.59% and 85.58% respectively) and ‘scrap gold’ 
(5.41% and 14.42% respectively). 
3 The difference is that ‘gold granules’ are taxed in accordance with ordinary VAT 
rules whereas ‘scrap gold’ is taxed in accordance with the reverse charge 
procedure (Article 17(1)(7) of the Ustawa o VAT and point 34 of Annex No 11 to 
the Ustawa o VAT). 
4 The tax authority of first instance confirmed the compatibility of the calculation 
submitted by the appellant and which was the subject of the transaction shown on 
the above invoices. However, it found that the above invoices did not document 
the actual course of the transaction and that the taxable person was not entitled to 
deduct VAT under Articles 88(3a)(4)(b) and 88(3a)(7) of the Ustawa o VAT. The 
ground for the foregoing was the incorrect statement on the invoices of the subject 
matter of the sale, including, on some of them, the incorrect statement of the value 
of the purchases and, accordingly, the amount of tax on those purchases, which 
were subject to ordinary taxation and the reverse charge procedure. Reference was 
also made to the view expressed in the judgment of the Naczelny Sąd 
Administracyjny (Supreme Administrative Court: ‘NSA’) of 10 March 2011, 
pointing out that the correctness of an invoice under substantive law means that it 
is not possible to regard as correct an invoice which, contrary to the content 
thereof, shows an economic event which took place to a different extent and 
concerns a different subject. It was also highlighted that the taxable person took 
no steps to obtain correcting invoices from its contractor. 
5 In its appeal, the appellant stressed that the transactions documented by the VAT 
invoices did in fact take place and the unfortunate definition of the subject of the 
transaction in the invoice was the sole defect of a formal nature. The use of that 
name arose mainly from the designation of the product purchased, which was 
smelted gold in the form of both granules and scrap. There were no grounds for 
refusing the party concerned the right to deduct since the tax authority of first 
instance itself confirmed that it was possible to calculate precisely the input tax 
due on ‘gold granules’ and ‘gold scrap’. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-491/18 
 
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6 The appeal body upheld the decision of the tax authority of first instance. In its 
view, there is a right to deduct VAT where an invoice issued confirms the actual 
transaction in terms of both the person and the subject concerned. It was noted 
that, although the tax authority of first instance accepted the clarifications and 
calculations of the person concerned, it found that the defect relating to the 
indication of the name of the goods was so serious that it could not give rise to a 
right to deduct input tax from defective invoices. It is true that in section 15(1) of 
the ministerial decree acknowledged that that an error in an invoice can, as a 
minor error, be corrected by a correcting notice. The appeal body states, however, 
that the invoices at issue do not reflect that actual transactions since they make it 
difficult for the tax authorities to collect VAT in the correct amount without 
having to carry out tax proceedings or a tax inspection. 
7 The party concerned brought an action before the Wojewódzki Sąd 
Administracyjny we Wrocławiu seeking annulment of the decision of the appeal 
body on grounds of infringement of Articles 86(1) and (2), Article 88(3a)(4)(a) 
and (b), and 88(3a)(7) of the Ustawa o VAT and infringement of the rules of 
procedure, that is to say Articles 180(1), 187(1), 191 and 210(1) and (4) of the Tax 
Code. The party concerned stressed that there were no grounds for refusing it the 
right to deduct on account of a minor formal error, namely the incorrect name of 
the goods. In response to the action the appeal body claimed that the action should 
be dismissed and maintained its previous position on the matter. 
8 By judgment of 20 February 2017 the Wojewódzki Sąd Administracyjny (WSA) 
we Wrocławiu found that the action was well founded and that in the situation 
established in this case the body’s position undermining the applicant’s right was 
incorrect in the context of Articles 86(1) and (2)(1)(a), 17(1)(7) and (2) and 
88(3a)(4)(a) and (b) of the Ustawa o VAT. The Wojewódzki Sąd Administracyjny 
stated that Article 88(3a)(4)(a) and (b) of the Ustawa o VAT concerns cases in 
which invoices do not correspond to reality in terms of establishing that a 
transaction was effected or of the amounts stated therein. The tax authority 
considered that the first of the provisions relied on concerns a restriction on 
fictitious transactions, the aim of which is to prevent the use of ‘blank 
documents’. However, in the present case the problem essentially concerned the 
accuracy and precision of the indication on the invoice of the goods which are the 
subject of the supply, and not the fictitious nature of the supply itself. The 
Wojewódzki Sąd Administracyjny acknowledged that the transactions had indeed 
taken place and certainly related to gold, and the uncertainties concerned only the 
form thereof. In the view of the Wojewódzki Sąd Administracyjny, that type of 
irregularity concerning the name of the goods cannot constitute a case of an 
invoice for a non-existent transaction. The issue of a correcting notice pursuant to 
section 15(1) of the ministerial decree would be justified in that case. However, 
irrespective of the fact that the appellant, as the purchaser, did not issue correcting 
notices in the cases concerned, there were no grounds for applying 
Article 88(3a)(4)(a) of the Ustawa o VAT and implementing consequences in the 
form of refusal of the right to deduct. To justify its position, the Wojewódzki Sąd 
Administracyjny cited the judgment of the Court of Justice of the European Union 
MENNICA WROCŁAWSKA 
 
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(hereinafter: ‘the Court of Justice’) of 15 September 2016 in Barlis 06 — 
Investimentos Imobiliários e Turísticos SA, C-516/14, EU:C:2016:690. If it were 
found that the subject of the supply was in fact scrap gold to which the reverse 
charging procedure applied, it would be necessary to apply Article 88(3a)(7) of 
the Ustawa o VAT and consequently challenge the right to take account of input 
tax only in so far as the supply of gold scrap is concerned. The court of first 
instance found that in other respects the input tax cannot be challenged in 
particular since in the course of the proceedings the authority established precisely 
the value of the supplies of the form of gold in individual transactions. 
9 The tax authority lodged with the Naczelny Sąd Administracyjny an appeal on a 
point of law against the above judgment of the WSA of 20 February 2017. The tax 
authority claims that a number of provisions of substantive law and rules of 
procedure have been infringed, in particular Article 141(4) of the Prawo o 
postępowaniu przed sądami administracyjnymi (Law on proceedings before the 
administrative courts; ‘the PPSA’) by annulling the decision of the appeal body 
and providing incorrect guidance as to the further direction of proceedings. 
10 By judgment of 19 December 2017 the Naczelny Sąd Administracyjny upheld the 
appeal on a point of law brought by the tax authority, setting aside the judgment of 
the WSA we Wrocławiu of 20 February 2017 and referring the case back to that 
court for further consideration. In its reasoning for the judgment it concurred with 
the claim that the written grounds for the judgment under appeal did not satisfy 
the requirements set out in Article 141(4) of the PPSA. It ruled that the framing of 
the reasoning deprives the person concerned of the possibility of properly framing 
the pleas in appeal on a point of law and challenging the arguments put forward 
by the court of first instance. At the same time, it found that the cited judgment of 
the Court of Justice of 15 September 2016 in Barlis 06 — Investimentos 
Imobiliários e Turísticos SA, EU:C:2016:690, cannot apply directly in the present 
case. In the view of the NSA, it is not possible to deduce from the aforementioned 
judgment that the tax authorities are obliged to establish the actual subject and 
quantity of the supply, regardless of what is entered in the invoice. Value added 
tax is a duty subject to self-assessment, hence the formalisation of the tax which is 
intended to make it possible to verify that self-assessment. Hence also the basic 
relevance of the invoices and other documents and messages referred to in 
Article 219 of Directive 2006/112. Consequently, the court hearing the appeal on 
a point of law did not accept the position of the court of first instance that the 
content of the invoice is essentially irrelevant and that importance attaches only to 
the fact that the transaction confirmed by it took place, whilst what was the 
subject of the supply or service and the extent to which the supply took place must 
be established by the tax authority, since this approach is supported by the 
principle of neutrality. It found that it is not possible to accept the inaction of the 
parties to the transactions concerned as regards submitting documents confirming 
the subject of the transactions. It stressed that it is common ground that no 
correcting invoices or notices were issued. 
11 The case was referred back to the WSA we Wrocławiu for further consideration. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-491/18 
 
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Principal arguments of the parties in the main proceedings 
12 In a written pleading of 15 March 2018 the appellant stated that the evidence 
collected in the case is such as to identify unequivocally the subject of the 
transactions effected and the proportion of the individual forms of gold in the 
goods supplied. As regards the lack of corrections to the invoices and the 
conclusion of the NSA, the appellant pointed to the content of Article 81b(1) and 
(2) of the Tax Code and argued that in the present circumstances no situation had 
arisen in which correction of the invoices, and thus correction of the returns 
submitted, would be possible by both parties (the issuer of the invoice and the 
recipient thereof). However, a correction made by only one of the parties to the 
transaction would not, in the light of the position taken by the tax authority, give 
rise to a right to deduct on the part of the recipient of the invoice and would 
therefore be ineffective. In this case the tax authorities issued decisions 
establishing liability to VAT on the part of the appellant and correction of the 
return could not take place after the tax proceedings had been completed. As a 
result of that action, the amount of the tax to be paid arose from the decision and 
not from the return. Those transactions actually took place and there was no fraud 
or abuse. The appellant raised the need to refer a question for a preliminary ruling 
since the court of first instance is bound by the above judgment of the NSA, 
pursuant to Article 190 of the PPSA. 
Succinct presentation of the reasoning in the reference 
13 The uncertainties of the Wojewódzki Sąd Administracyjny concern the first 
category of transactions and in particular where the invoice stated ‘scrap gold’ 
which was in fact ‘gold granules’. Dispelling these uncertainties will also affect 
the assessment by the Wojewódzki Sąd Administracyjny of the second category of 
the above transactions. As regards the issue of settlements on transactions and the 
issue of the reverse charging procedure which has been raised, the Wojewódzki 
Sąd Administracyjny notes in this regard the order of the Court of Justice of 
23 November 2017 in ‘Geocycle Bulgaria’ EOOD, C-314/17, EU:C:2017:901, 
and the request for a preliminary ruling made by Fóvárosi Közigazgatási és 
Munkaügyi Bíróság (Hungary) on 11 September 2017 — PORR Építési Kft. v 
Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatósága (Case C-691/17). The 
second question referred for a preliminary ruling also related to the binding of the 
court of first instance by the judgment of the NSA of 19 December 2017. Having 
regard to the judgment of the Court of Justice of 20 October 2011 in Interedil Srl, 
in liquidation, C-396/09, EU:C:2011:671, which found that EU law precludes a 
national court from being bound by a national procedural rule under which that 
court is bound by the rulings of a higher national court, where it is apparent that 
the rulings of the higher court are at variance with EU law, as interpreted by the 
Court of Justice, the present request for a preliminary ruling has become necessary 
in order to remove any uncertainty regarding the interpretation of EU law in the 
circumstances of the present case. 
MENNICA WROCŁAWSKA 
 
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14 Turning to the essence of the matter, in relation to the situation which forms the 
background to the uncertainties of the Wojewódzki Sąd Administracyjny it was 
common ground between the taxable person and the tax authorities that the 
invoices incorrectly showing only ‘scrap gold’ (covered by the reverse charge 
procedure) as the subject of the purchase did in fact document the purchase of 
gold granules (covered by the normal tax system). The invoice was therefore 
defective as regards the name of the subject of the transaction but correct as 
regards the form of settlement used, namely the normal means of taxation. The 
taxable person submitted the relevant background documents and clarifications 
necessary to establish the actual subject of the transaction. It merely failed to 
make any correcting notices. The supplier paid 23% VAT. The tax authorities 
confirmed that in this case the subject of the transaction was gold granules but 
nevertheless refused the right to deduct VAT, finding, pursuant to 
Article 88(3a)(4)(a) of the Ustawa o VAT, that the transactions shown on those 
invoices had not been carried out. When referring the case back for further 
consideration the court hearing the appeal on a point of law also ordered re-
examination of whether or not the above provision of national law should be 
applied in this case, thus dismissing the possibility of applying in this case the 
judgment of the Court of Justice of 15 September 2016 in Barlis 06 — 
Investimentos Imobiliários e Turísticos SA, EU:C:2016:690. 
The position of the referring court and the reference to the case-law of the 
Court of Justice 
15 An analysis of the case-law of the Court of Justice failed to dispel the 
uncertainties of the national court. At the outset, it should be noted that the 
position of the tax authorities means that an incorrect name of the goods on an 
invoice has the same outcome as a blank invoice, even though the invoice was not 
blank and it was not found that the right to deduct VAT was linked to any tax 
fraud or concealment of information by the taxable person. 
16 At the same time, the tax authorities concede that the error in the invoice relating 
to the name (nature) of the goods (information relating to the subject of the 
transaction) could by corrected by a correcting notice (section 15(1) of the 
ministerial decree). In essence this means that by providing for such a possibility 
with regard to that item in a VAT invoice the Polish legislature regards such an 
error as a minor formal error which does not even require the issue of a correcting 
invoice, but merely the issue by the purchaser of a notice correcting that defect. In 
its case-law the NSA also pointed to the fact that no weight is attached to the lack 
of a correcting notice where the transaction actually exists. 
17 Therefore, where the tax authorities themselves confirm what goods were the 
subject of the transaction and that other information on the invoice was correct, 
the transactions were genuine, (23%) VAT was collected from the issuer and there 
is no doubt that the reverse charging procedure is not applicable to that nature of 
goods [gold granules], is refusing the taxable person the right to deduct on the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-491/18 
 
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basis of the fact that no actual transaction is found is a practice which infringes the 
principle of neutrality and proportionality and the provisions of Directive 
2006/112, and the case-law adopted on the basis thereof. 
18 The national court considers that such an outcome goes too far. Even more so 
since, as the Court of Justice ruled in its judgment of 26 April 2018 in Zabrus 
Siret SRL, C-81/17, EU:C:2018:283, paragraph 46, the non-compliance with 
formal requirements, which may be remedied, is not such as to call into question 
the proper functioning of the VAT system.  
19 It is true that, in its judgments, the Court of Justice has emphasised that where all 
of the material conditions required in order to benefit from the right to deduct 
VAT are satisfied and, before the tax authority concerned has made a decision, the 
taxable person has submitted a corrected invoice to that tax authority, the benefit 
of that right cannot, in principle, be refused on the ground that the original invoice 
contained an error (see judgments of the Court of Justice of 8 May 2013, Petroma 
Transport, C-271/12, EU:C:2013:297, paragraph 34, and of 15 July 2010, Pannon 
Gép Centrum, C-368/09, EU:C:2010:441, paragraphs 43 to 45). However, the 
above finding does not mean a contrario that the lack of such correcting invoices 
(or notices) (where other evidence exists) can remove the right to deduct input tax 
where the subject of the transaction is actually determined. 
20 Under Polish law, the tax authority is obliged to take all necessary measures to 
clarify the factual position precisely and to resolve the matter in the tax 
proceedings (Article 122 of the Tax Code), and consequently to establish any 
irregularity and correct the taxable person’s settlement. Submitting a correcting 
notice in the course of proceedings has an identical effect to establishing such an 
irregularity in a decision and the tax authority correcting it in its findings. What is 
important is that it would have no effect on the change in settlement to be made by 
the taxable person. Nor is there anything to prevent the tax authority from 
correcting the subject of the transaction and drawing certain consequences from 
that fact on the basis of the evidence gathered in the course of the proceedings (the 
Court of Justice does not deny this in principle (see, in this context, the order of 
the Court of Justice of 23 November 2017, ‘Geocycle Bulgaria’ EOOD, C-314/17, 
EU:C:2017:901)). 
21 Consequently, according to settled case-law, the fundamental principle of VAT 
neutrality requires deduction of input tax to be allowed if the substantive 
requirements are satisfied, even if the taxable person has failed to comply with 
some of the formal requirements (judgment of the Court of Justice of 28 July 
2016, Astone, C-332/15, EU:C:2016:614, paragraph 45). The substantive 
requirements for the right to deduct are those which govern the actual substance 
and scope of that right, such as those provided for in Chapter 1 of Title 10 of the 
VAT Directive, entitled ‘Origin and scope of the right to deduct’, whereas the 
formal requirements for that right regulate the rules governing its exercise and 
monitoring thereof and the smooth functioning of the VAT system, such as the 
obligations relating to accounts, invoicing and filing returns (judgment of the 
MENNICA WROCŁAWSKA 
 
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Court of Justice of 28 July 2016, Astone, C-332/15, EU:C:2016:614, paragraph 47 
and the case-law cited). 
22 The case may be different if non-compliance with such formal requirements 
effectively prevents the production of conclusive evidence that the substantive 
requirements have been satisfied (judgment of the Court of Justice of 28 July 
2016, Astone, C-332/15, EU:C:2016:614, paragraph 46 and the case-law cited). 
23 Essentially, in its judgments the Court of Justice finds that refusal of the right to 
deduct VAT depends more on the lack of information necessary to establish that 
those substantive requirements have been satisfied than it does on failure to 
comply with a formal requirement. 
24 Thus, in the judgment of the Court of Justice of 11 December 2014 in Idexx 
Laboratories Italia, C-590/13, EU:C:2014:2429, paragraphs 44 and 45, it was 
found that the tax authorities had all the information necessary to establish that 
those substantive requirements had been satisfied and accordingly that the right to 
deduct VAT could not be denied to the taxable person on the ground that it did not 
satisfy the formal requirements.  
25 In the judgment of the Court of Justice of 7 March 2018 in Întreprinderea 
Individuală Dobre M. Marius, C-159/17, EU:C:2018:161, that argument is 
reiterated in paragraph 35 and in paragraph 38 it is further stated that it is for the 
referring court to ascertain whether the tax authorities had the information 
necessary to establish that the substantive requirements giving rise to the right to 
deduct input VAT paid by the taxable person had been satisfied, notwithstanding 
the alleged failure to satisfy formal conditions. In that judgment the Court of 
Justice also found that even if infringements of those formal obligations do not 
prevent the production of conclusive evidence that the substantive requirements 
giving rise to the right to deduct input VAT have been satisfied, such 
circumstances may establish the simplest case of tax evasion, in which the taxable 
person deliberately fails to fulfil the formal obligations incumbent upon him with 
the aim of evading payment of the tax (paragraph 40). No such circumstance has 
arisen in the present case since the authorities have not found that any tax fraud 
has taken place. 
26 In the judgment of the Court of Justice of 15 November 2017, Rochus Geissel and 
Others, C-374/16 and C-375/16, it was found that the entry on an invoice of a 
letter box address and not the address at which the taxable person conducts its 
economic activity (Article 226(5) of Directive 2006/112) does not provide 
grounds for refusing the taxable person the right to deduct VAT since it was 
possible to establish whether the taxable person conducted the actual activity by 
the tax identification number (that is to say, on the basis of information other than 
that shown on the invoice). 
27 In the judgment of the Court of Justice of 15 September 2016 in Barlis 06 — 
Investimentos Imobiliários e Turísticos SA, C-516/14, EU:C:2016:690, 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-491/18 
 
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paragraph 27, it was found, on the other hand, that the objective of the details 
which must be shown in an invoice is to allow the tax authorities to monitor 
payment of the tax due and, if appropriate, the existence of the right to deduct 
VAT. The Court of Justice expressly requires detailed examination of documents 
provided by the taxable person, the aim of which is to specify the name of the 
goods (paragraph 34). At the same, it states that the tax authorities cannot refuse 
the right to deduct VAT on the sole ground that an invoice does not satisfy the 
conditions required by Article 226(6) and (7) of Directive 2006/112 if they have 
available all the information necessary to ascertain whether the substantive 
conditions for that right are satisfied. In this respect, the authorities cannot restrict 
themselves to examining the invoice itself. They must also take account of the 
additional information provided by the taxable person (paragraphs 44 and 45).  
28 In support of their position the tax authorities cite the judgment of the Court of 
Justice of 8 May 2013 in Petroma Transport, C-271/12, EU:C:2013:297. 
According to that judgment, the provisions of the Sixth Directive (...) [Directive 
2006/112] must be interpreted as not precluding national legislation, such as that 
at issue in the main proceedings, under which the right to deduct value added tax 
may be refused to taxable persons who are recipients of services and are in 
possession of invoices which are incomplete, even if those invoices are 
supplemented by the provision of information seeking to prove the occurrence, 
nature and amount of the transactions invoiced after such a refusal decision was 
adopted. The principle of fiscal neutrality does not preclude the tax authority from 
refusing to refund the VAT paid by a company providing services, in the case 
where the exercise of the right to deduct the value added tax levied on those 
services has been denied to the companies receiving those services by reason of 
the irregularities confirmed in the invoices issued by that service-providing 
company. However, it should be noted that that judgment of the Court of Justice 
was delivered in the circumstances of a case in which the taxable person provided 
information seeking to prove the occurrence, nature and amount of the 
transactions invoiced after such a refusal decision had been adopted, and not 
before as in the present case. 
29 Furthermore, the argument which the tax authority derives from the case-law of 
the Court of Justice, that in this case there is a formal defect so serious as to make 
it impossible to establish the actual extent of the transactions shown on the 
invoice, essentially runs counter to the facts of the case. In the view of the 
Wojewódzki Sąd Administracyjny, it is not possible to rely on the above 
arguments where the tax authority itself confirms what the subject of the 
transaction was on the basis of the evidence supplied by the taxable person. In 
other words, the tax authority first establishes the facts, with the active 
involvement of the taxable person, and then, on the basis of the case-law of the 
Court of Justice, finds that the defect was so serious as to empower it to refuse the 
taxable person the right to deduct VAT. This type of power derives from the need 
to carry out tax proceedings or a tax inspection, which is generally one of the 
obligations of tax authorities. That position is accepted by the NSA, which, in its 
judgment did not concur with the argument of the local court that the tax 
MENNICA WROCŁAWSKA 
 
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authorities are not obliged to establish the actual subject and size of the supply 
regardless of what is entered in the invoice. However, it is precisely satisfaction of 
the substantive condition which is the key condition for the right to deduct VAT 
and in the view of the court of first instance it also has a bearing on what system 
of taxation is to be applied in this case.