Judgment — ECLI:EU:T:2026:113
Date: 2026-02-11
Language of the case: Polish
Procedure: Reference for a preliminary ruling
Origin: Poland

Translation T-689/24 – 1 
Case T-689/24 
Request for a preliminary ruling 
Date lodged: 
10 December 2024 
Referring court: 
Naczelny Sąd Administracyjny (Poland) 
Date of the decision to refer: 
2 October 2024 
Applicant: 
I. S.A. 
Defendant: 
Dyrektor Krajowej Informacji Skarbowej 
  
Ref. […] 
ORDER 
2 October 2024 
The Naczelny Sąd Administracyjny (Supreme Administrative Court) composed 
of: 
[…] 
having considered on 18 September 2024 
at a hearing before the Izba Finansowa (Finance Chamber) 
the appeal on a point of law brought by I. S.A. established in W. 
against the judgment of the Wojewódzki Sąd Administracyjny w Warszawie 
(Regional Administrative Court, Warsaw) 
of 9 October 2020, file ref. […] 
EN 
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in the case brought by I. S.A. established in W. 
against an advance ruling of the Dyrektor Krajowej Informacji Skarbowej 
(Director of the National Tax Information Service) 
of 12 November 2019, No […] 
concerning tax on goods and services 
makes the following order: 
1. The following question is referred to the Court of Justice of the European 
Union for a preliminary ruling, pursuant to Article 267 […] [TFEU]: 
‘Must Articles 167, 168(a) and 178(a) of Council Directive 2006/112/EC of 
28 November 2006 on the common system of value added tax (OJ 2006 
L 347, p. 1, as amended) and the principles of fiscal neutrality, effectiveness 
and proportionality be interpreted as precluding a provision of national law, 
such as Article 86(10b)(1) of the [Ustawa o podatku od towarów i usług 
(Polish Law on VAT)], under which a taxable person may not assert the 
right to deduct input tax in a return submitted for a period in which that 
person met the substantive conditions for exercising that right if, during that 
period, he or she had not yet received an invoice, even though that person 
did receive the invoice before submitting the return?’ 
2. […] [staying of proceedings] 
GROUNDS 
I. Legal background. 
1. Provisions of European Union law. 
Council Directive 2006/112/EC of 28 November 2006 on the common system of 
value added tax (OJ 2006 L 347, p. 1, as amended), ‘Directive 2006/112/EC’: 
Article 167: 
A right of deduction shall arise at the time the deductible tax becomes chargeable. 
Article 168(a): 
In so far as the goods and services are used for the purposes of the taxed 
transactions of a taxable person, the taxable person shall be entitled, in the 
Member State in which he carries out these transactions, to deduct the following 
from the VAT which he is liable to pay: 
DYREKTOR KRAJOWEJ INFORMACJI SKARBOWEJ 
 
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(a) the VAT due or paid in that Member State in respect of supplies to him of 
goods or services, carried out or to be carried out by another taxable person. 
Article 178(a): 
In order to exercise the right of deduction, a taxable person must meet the 
following conditions: 
(a) for the purposes of deductions pursuant to Article 168(a), in respect of the 
supply of goods or services, he must hold an invoice drawn up in accordance with 
Sections 3 to 6 of Chapter 3 of Title XI. 
[2.] Provisions of national law. 
Ustawa z dnia 11 marca 2004 r. o podatku od towarów i usług (Law of 11 March 
2004 on tax on goods and services) (consolidated text) (Dz. U. of 2018, item 
2174, as amended; ‘Law on VAT’): 
Article 86(1): 
In so far as goods and services are used to conduct taxable transactions, a taxable 
person within the meaning of Article 15 shall have the right to deduct the amount 
of input tax from the amount of tax due, subject to Article 114, Article 119(4), 
Article 120(17) and (19) and Article 124. 
Article 86(10): 
The right to deduct the amount of input tax from the amount of tax due shall arise 
when a return is drawn up for the period in which the tax liability arose in relation 
to the goods and services acquired or imported by the taxable person. 
Article 86(10b)(1) 
The right to deduct the amount of input tax from the amount of tax due in the 
cases referred to in: 
(1) paragraph 2(1) and (2)(a) – shall arise no earlier than in the return for the 
period during which the taxable person receives the invoice or customs document. 
II. Facts. 
1. Proceedings before the tax authorities. 
I. S.A. established in W. (‘the applicant’) requested an advance ruling from the 
Director of the National Tax Information Service (‘the director’ or ‘the authority’) 
concerning tax on goods and services in connection with the right to deduct VAT 
from invoices for the purchase of electricity and gas in a return for a period when 
invoices documenting purchases made in a given tax period are received by the 
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applicant in the following tax period, but, at the latest, at the expiry of the deadline 
by which the applicant must submit the return. 
When setting out the facts, the applicant stated that its area of activity is the 
operation of a clearing and settlement house and the performance of other 
activities related to organising and conducting, respectively, the clearing or 
settlement of transactions concluded on a regulated market within the meaning of 
the relevant legislation. The applicant carries out clearing and settlement of 
transactions concluded by its members on T. S.A. ([…]), inter alia, concerning gas 
and electricity. 
From a tax point of view, within the framework of its activity the applicant 
participates in electricity and gas trading transactions between members […] in 
such a way that, on the basis of orders placed and subject to certain conditions 
being met, it buys electricity and gas from sellers and then resells them to buyers, 
while charging a commission, the principles for payment of the commission not 
being the subject of the request for an advance ruling. The applicant appears on 
VAT invoices as the buyer or seller and is therefore obliged to pay input and 
output VAT. 
On the date on which the VAT returns were submitted, the applicant held in each 
case a set of invoices, that is to say invoices documenting the acquisition of goods 
and services in respect of which a tax obligation arose in the tax period for which 
the VAT return was submitted and which the applicant received at the latest at the 
expiry of the deadline for submitting the return for the tax period during which a 
tax obligation arose in respect of the declared purchase transactions and which 
gives rise to input VAT. 
In the light of the facts thus set out, in its request for an advance ruling the 
applicant asked whether it is entitled to deduct the input tax arising from correctly 
issued VAT invoices for the purchase of electricity and gas, under Article 86(1) 
and (10) of the Law on VAT, that is to say in the return for the period during 
which the tax obligation arose in relation to the goods acquired, also in a situation 
where the invoices documenting the purchase in a given tax period are received by 
the applicant in the following tax period, but, at the latest, at the expiry of the 
deadline by which the applicant must submit the VAT return in respect of that 
period. 
At the same time, in its request for an advance ruling the applicant set out its 
position in the case, namely that it is entitled to deduct input VAT arising from 
correctly issued VAT invoices for the purchase of electricity and gas, pursuant to 
Article 86(1) and (10) of the Law on VAT, in the return for the period during 
which the tax obligation arose in relation to the goods acquired, also in a situation 
where invoices documenting the purchase in a given tax period are received by it 
in the following tax period but, at the latest, at the expiry of the deadline by which 
the applicant must submit the return for that period. 
DYREKTOR KRAJOWEJ INFORMACJI SKARBOWEJ 
 
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In an advance ruling of 12 November 2019, the authority found the applicant’s 
position to be incorrect. The director stated that the applicant can assert its right to 
deduct VAT at the time it receives an invoice, and that Article 86(1) and (10) of 
the Law on VAT is consistent with Directive 2006/112/EC as the provisions of 
that directive mention, as a condition for deducting VAT on a supply of goods or 
services, the holding by the purchaser of an invoice drawn up in accordance with 
Directive 2006/112/EC. 
The authority pointed out that the exercise of the right to deduct input tax is 
subject to the satisfaction of formal conditions, including receipt of an invoice, 
which, however, does not result in the taxable person being deprived of the right 
to deduct input VAT and thus does not infringe the principle of VAT neutrality. 
[2.] Proceedings before the administrative courts. 
1. By judgment of 9 October 2020, ref. No […], the Regional Administrative 
Court, Warsaw, dismissed the action brought by the applicant. 
In the grounds for its decision, the first-instance court pointed out, with reference 
to the Law on VAT and Directive 2006/112/EC, that the right to reduce the 
amount of output tax by the amount of input tax exists when certain preconditions 
have been met, that is to say the deduction is made by a registered, active taxable 
person for the purposes of the tax on goods and services and the goods and 
services on whose purchase the tax was paid are used to perform taxable 
transactions. The first-instance court clarified that the right to deduct input tax 
generally correlates with the time at which VAT becomes chargeable, that is to 
say the time at which the tax liability arises. However, for a taxable person to 
exercise that right, two further conditions must be met, that is to say the 
transaction must have actually taken place and the taxable person must hold an 
invoice documenting the transaction. The above understanding of the national 
legislation, in the view of the first-instance course, is justified both by 
Articles 168 and 178 of Directive 2006/112/EC and the case-law of the Court of 
Justice (judgment of 29 April 2004, […], C-152/02). 
The first-instance court agreed with the authority that, in so far as the right to 
deduct already arises in relation to the period during which the tax liability arose 
in respect of the goods and services acquired, the exercise of that right requires 
that an invoice be held. The time at which the right to deduct input tax laid down 
in Article 167 of Directive 2006/112/EC arises is modified in practice by the 
formal condition laid down in Article 178(a) of that directive. 
The first-instance court also pointed out that the applicant cannot seek privileged 
treatment as regards the timing of the deduction of VAT on the ground that its 
operating principle is exceptional compared with other entities. 
2. In its appeal on a point of law, the applicant claimed, pursuant to 
Article 185(1) of the ustawa z dnia 30 sierpnia 2002 r. Prawo o postępowaniu 
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przed sądami administracyjnymi (Law of 30 August 2002 on the code of 
procedure before the administrative courts (Dz. U. of 2018, item 1302, as 
amended; ‘the Code of Procedure’), that the judgment under appeal be set aside in 
its entirety and the action be considered pursuant to Article 188 of the Code of 
Procedure, or, if it is found that the substance of the matter is not sufficiently 
clarified, that the judgment under appeal be set aside in its entirety and the case be 
referred back to the Regional Administrative Court. It further claimed that an 
appropriate order be made awarding it the costs of the proceedings, including the 
costs of legal representation, and that a hearing be held, alleging, inter alia, 
infringements of substantive law, namely: 
- Article 86(1), (10) and (10b)(1) of the Law on VAT, in conjunction with 
Articles 167, 168(a) and 178(a) of Directive 2006/112/EC – by reason of their 
misinterpretation, consisting in the assumption that the applicant is not entitled to 
deduct input VAT arising from correctly issued VAT invoices for the purchase of 
electricity and gas in the tax period during which a tax liability arose in relation to 
the goods acquired in a situation where invoices documenting the purchases made 
in a given tax period are received by the applicant in the following tax period, but, 
at the latest, at the expiry of the deadline by which the applicant must submit the 
return for that period, which resulted in the abovementioned provisions being 
applied incorrectly; 
- Article 86(10b)(1) of the Law on VAT, in conjunction with 
Article 86(1)(10) thereof and Articles 167, 168(a) and 178(a) of Directive 
2006/112 – by reason of their misinterpretation, consisting in the disregarding of 
the wording and purpose of Article 178(a) of Directive 2006/112 (failure to apply 
the principle of interpreting national law in conformity with EU law) and, 
consequently, the finding that it is necessary to hold an invoice in order for the 
right to deduct to arise, while, under EU law, the holding of an invoice is merely a 
condition for the exercise of the right of deduction and the right to deduct VAT 
arises where the conditions laid down in Article 86(1) and (10) of the Law on 
VAT (and Article 168(a) and Article 167 of Directive 2006/112/EC respectively) 
are met; 
- Article 86(10b)(1) of the Law on VAT, in conjunction with Articles 86(1) 
and 86(10) thereof and Articles 1, 73, 90(1) and 178(a) of Directive 2006/112 – by 
reason of the misinterpretation of the abovementioned provisions consisting in the 
finding that, in order for the right to deduct VAT in respect of taxable transactions 
to arise, it is necessary to receive an invoice confirming those transactions, which 
led to the misapplication of the abovementioned provisions and an infringement of 
the principles of the neutrality and proportionality of VAT; 
- Article 178(a) of Directive 2006/112/EC, in conjunction with 
Article 86(10b)(1) of the Law on VAT, and Articles 167 and 168(a) of Directive 
2006/112/EC, in conjunction with Article 4(3) [TEU], the third paragraph of 
Article 288 [TFEU] and Article 91(3) of the Constitution of the Republic of 
Poland of 2 April 1997 – by reason of the misinterpretation of the 
DYREKTOR KRAJOWEJ INFORMACJI SKARBOWEJ 
 
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abovementioned provisions which led to the finding that the abovementioned 
provision of the Law on VAT constitutes correct implementation of the provisions 
of the directive, whereas the court was obliged to disregard Article 86(10b)(1) of 
the Law on VAT in so far as it lays down conditions which exceed/are 
inconsistent with the content of Directive 2006/112/EC and to apply directly, in 
that regard, Article 178(a) of Directive 2006/112/EC. 
III. Reasoning in the request for a preliminary ruling by the national court 
(Supreme Administrative Court). 
1. By its question, the Supreme Administrative Court seeks to ascertain from 
the Court of Justice whether Articles 167, 168(a) and 178(a) of Directive 
2006/112/EC and the principles of fiscal neutrality, effectiveness and 
proportionality must be interpreted as precluding an interpretation of a provision 
of national law, namely Article 86(10b)(1) of the Law on VAT, under which a 
taxable person is denied the possibility of deducting an amount of input tax in a 
return for a given tax period during which the right to deduct that amount arose, in 
a situation where, after the expiry of that tax period but before the submission of 
the return for that tax period, the preconditions for exercising the right of 
deduction were met (that is to say, the taxable person received an invoice 
documenting a taxable transaction). 
2. The authority providing an advance ruling considers that the conditions and 
the time at which the right to deduct input tax laid down in Articles 167 and 
168(a) of Directive 2006/112/EC arises are modified by an additional formal 
condition as to when the right of deduction arises, laid down in Article 178(a) of 
that directive. In the authority’s view, the provisions of the national law 
(Article 86(10b)(1) of the Law on VAT) concerning the time at which the right to 
deduct input tax is asserted constitute correct implementation of the EU scheme. 
Therefore, the right to deduct input tax arises at the time the VAT invoice is 
received (subject to the other conditions). 
3. In the previous national case-law and practice of the tax authorities, the 
authority’s position has not given rise to doubt. It has been assumed that, in 
addition to meeting the other conditions (not relevant to the present case) required 
by the Law on VAT, the right to deduct input tax was linked to the need for the 
taxable person to receive a VAT invoice documenting the acquisition of goods or 
services. 
4. According to the Court of Justice’s settled case-law, the right of taxable 
persons to deduct the VAT due or already paid on goods purchased and services 
received as inputs from the VAT which they are liable to pay is a fundamental 
principle of the common system of VAT established by EU legislation. As the 
Court of Justice has repeatedly held, the right of deduction is an integral part of 
the VAT scheme and in principle may not be limited (judgment of 18 March 2021 
[…], C-895/19, EU:C:2021:216, paragraph 32 and the case-law cited). 
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The deduction system is intended to relieve the operator entirely of the burden of 
the VAT due or paid in the course of all of his economic activities. The common 
system of VAT therefore ensures that all economic activities, whatever their 
purpose or results, provided that they are in principle themselves subject to VAT, 
are taxed in a neutral way (judgment of 18 March 2021, […], C-895/19, 
EU:C:2021:216, paragraph 33 and the case-law cited). 
5. The right to deduct input tax is subject to compliance with the substantive 
and formal conditions laid down by Directive 2006/112/EC (see, to that effect, 
judgment of 26 April 2018, […], C-81/17, EU:C:2018:283, paragraph 35, and of 
18 March 2021, […], C-895/19, EU:C:2021:216, paragraph 35). 
The substantive conditions which must be met in order for the right to arise are set 
out in Article 168(a) of Directive 2006/112/EC. Thus, for that right to be 
available, first, the person concerned must be a taxable person within the meaning 
of that directive and, secondly, the goods or services relied on to give entitlement 
to the right of deduction must be used by the taxable person for the purposes of his 
or her own taxed output transactions and those goods or services must be supplied 
by another taxable person as inputs (see, to that effect, judgment of 15 September 
2016, […], C-518/14, EU:C:2016:691, paragraph 28 and the judgment cited 
therein of 22 October 2015, C-277/14, EU:C:2015:719, paragraph 28 and the 
case-law cited). 
A formal condition for the right of deduction in accordance with Article 178(a) of 
Directive 2006/112/EC is the holding of an invoice drawn up in accordance with 
Article 226 of that directive (see judgment of 15 September 2016, […], C-518/14, 
EU:C:2016:691, paragraph 29 and the judgments cited therein; of 1 March 2012, 
[…], C-280/10, EU:C:2012:107, paragraph 41; and of 22 October 2015, […], 
C-277/14, EU:C:2015:719, paragraph 29). 
Just as importantly, in accordance with the first paragraph of Article 179 of 
Directive 2006/112/EC, the deduction is to be made by subtracting from the total 
amount of VAT due for a given accounting period the total amount of VAT ‘in 
respect of which, during the same period, the right of deduction has arisen and is 
exercised in accordance with Article 178’. It follows that the right to deduct VAT 
must in principle be exercised in respect of the period during which, first, the right 
has arisen and, second, the taxable person is in possession of an invoice (see 
judgment of 18 March 2021, […], C-895/19, EU:C:2021:216, paragraphs 39 and 
40; judgment of 15 September 2016, […], C-518/14, EU:C:2016:691, 
paragraph 35; and judgment of 29 April 2004, […], C-152/02, EU:C:2004:268, 
paragraph 34). This method of deduction ensures that fiscal neutrality is 
maintained. 
However, at the same time, it follows from the case-law of the Court of Justice 
that the right to deduct input tax arises if the substantive requirements are 
satisfied, even if the taxable persons have failed to comply with some formal 
conditions (see judgment of 15 September 2016, […], C-518/14, EU:C:2016:691, 
DYREKTOR KRAJOWEJ INFORMACJI SKARBOWEJ 
 
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paragraph 38 and the case-law cited). Holding an invoice is a formal condition, 
not a substantive condition, of the right to deduct VAT (see judgment of 
15 September 2016, […], C-518/14, EU:C:2016:691, paragraphs 29 and 38). 
Holding an invoice is therefore a condition for the right of deduction to be 
exercised, not for it to arise. The exercise of the right of deduction, and therefore 
the assertion thereof, takes place through the submission of a tax return expressing 
the taxable person’s intention to exercise the right of deduction. 
6. In that connection, doubt arises as to whether or not Directive 2006/112/EC 
should preclude a provision of national legislation (Article 86(10b)(1) of the Law 
on VAT), which lays down an additional condition for the right of deduction to 
arise (in comparison with EU law), that is to say the need to hold an invoice or 
customs document on the date of payment. 
The effect of applying Article 86(10b)(1) of the Law on VAT in the circumstances 
of this case is that the right to deduct must be delayed (postponed). In a situation 
where the seller has already paid the VAT due on a transaction to the State budget, 
the purchaser – in order for the right to deduct to arise – is obliged to wait until 
such time as he or she physically receives the VAT invoice. In other words, in the 
light of the abovementioned provisions of national law, even though a transaction 
took place, for example, in June of a given tax year, since the purchaser received 
the VAT invoice documenting it in July of a given tax year, he or she may deduct 
the input VAT included in that invoice in the return for the month of July. 
However, in its judgment of 15 September 2016 ([…], C-518/14, EU:C:2016:691, 
paragraph 39) the Court of Justice clarified that while the Court had held, in 
paragraph 38 of its judgment of 29 April 2004, […] (C-152/02, EU:C:2004:268) 
that the right of deduction must be exercised in respect of the tax period in which 
the goods or services are supplied and in which the taxable person is in possession 
of the invoice, it must be noted that that case concerned an undertaking which did 
not hold an invoice at the time when it exercised the right of deduction, and that 
the Court did not therefore rule on the temporal effect of a correction of the 
original invoice. Thus, as Court pointed out, that case may be distinguished from 
the case which was at issue in the main proceedings, in which S. held invoices at 
the time of exercising its right to deduct VAT and had paid input VAT. 
Also in the case presently under consideration, the applicant held the invoices at 
the time it submitted its tax return. The applicant received the invoices for the 
purchase of goods and services in the following tax period, but, at the latest, at the 
expiry of the deadline by which the VAT return for that period had to be 
submitted. 
7. In the view of the Naczelny Sąd Administracyjny, an analysis of EU law and 
the Court of Justice’s case-law cited above may lead to the conclusion that, under 
EU law, it should be possible to deduct input tax for a given tax period in a 
situation where the right of deduction has arisen in that tax period and, in addition, 
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by the time that right is asserted (in the taxable person’s return for that tax period), 
the taxable person already has an invoice or customs document. In other words, in 
so far as the right to deduct (subject to the substantive conditions being met) arose 
in the month of June of a given year, if the taxable person receives VAT invoices 
documenting the purchase of goods and services (and thus meets the formal 
conditions) by the date of the submission of the tax return for June (that is to say, 
when that person exercises the right of deduction), he or she will be entitled to 
include those invoices in the June return of a given year. 
Such an interpretation of the provisions of Directive 2006/112/EC would allow 
the applicant to consummate (assert) its right to deduct input tax without undue 
delay and without creating a risk of abuse. Postponement of the time of deduction 
of VAT may directly affect the infringement of the principle of neutrality and is 
not directly supported by the wording of Directive 2006/112/EC. 
8. In the view of the Supreme Administrative Court, the above doubts related 
to potential incorrect implementation of provisions of EU law in the national legal 
order, resulting in the application, pursuant to the Law on VAT, of a provision 
which is inconsistent with Directive 2006/112/EC, justify referring the question to 
the Court of Justice for a preliminary ruling. 
9. For those reasons, the Supreme Administrative Court has ruled, pursuant to 
Article 267 TFEU, as set out in point 1 of the operative part of this order. 
10. […] [staying of proceedings] 
[…] [stamp, signatures]