Judgment — ECLI:EU:C:2010:569
Date: 2010-09-30
Language of the case: Hungarian
Court formation: Third Chamber
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Hungary

Summary of the Judgment Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Deduction of input tax – Reverse charge procedure – Taxable person liable for value added tax as the person to whom goods or services provided – Right to deduct (Council Directive 2006/112, Arts 167, 168 and 178) Articles 167, 168 and 178 of Directive 2006/112, on the common system of value added tax, must be interpreted as precluding the retroactive application of national legislation which, in the context of a reverse charge regime, makes the deduction of value added tax relating to construction works conditional upon the amendment of invoices for those services and the submission of a supplementary, amending tax declaration, while the tax authority concerned has all the information necessary to establish that the taxable person is, as the recipient of the supply of services at issue, liable to value added tax, and to ascertain the amount of tax deductible. The fact that a taxpayer opts to apply a new value added tax law rather than a previous one cannot of itself affect its right to deduct the input value added tax paid, which arises directly from Articles 167 and 168 of Directive 2006/112. The principle of fiscal neutrality also 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. Therefore, when the tax authority has the information necessary to establish that the taxable person is, as the recipient of the supply of services at issue, liable to value added tax, Articles 167, 168 and 178(f) of Directive 2006/112 preclude legislation which imposes, in relation to the right of that taxable person to deduct that tax, additional conditions which may have the effect of rendering that right ineffective for practical purposes. This could be the case when the substantive conditions in order to benefit from the right to deduct, laid down in Article 168(a) of Directive 2006/112, have been fulfilled and, at the time the tax authority denies the taxpayer the right to deduct the value added tax, that authority has all the information necessary to establish that the taxpayer is liable to value added tax. (see paras 36, 39-40, 42-43, 46, operative part)