Case C‑576/15

Маya Маrinova ET

v

Direktor na Direktsia ‘Obzhalvane i danachno-osiguritelna praktika’ Veliko Tarnovo pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite

(Request for a preliminary ruling

from the Administrativen sad Veliko Tarnovo)

‛Reference for a preliminary ruling — Taxation — Value added tax — Directive 2006/112/EC — Article 2(1)(a) — Article 9(1) — Article 14(1) — Articles 73, 80 and 273 — Principles of fiscal neutrality and proportionality — Tax evasion — Anomalies in accounting — Concealment of supplies and revenue — Determination of the taxable amount’

Summary — Judgment of the Court (Seventh Chamber), 5 October 2016

Harmonisation of fiscal legislation — Common system of value added tax — Taxable amount — National legislation allowing for the taxable amount to be determined through a presumption of subsequent resale of goods supplied to, but not accounted for by, a taxable person — Measure to prevent evasion — Lawfulness — Conditions — Observance of the principle of proportionality

(Council Directive 2006/112, Arts 2(1)(a), 9(1), 14(1), 73 and 273)

Article 2(1)(a), Article 9(1) Article 14(1) and Articles 73 and 273 of Directive 2006/112 on the common system of value added tax and the principle of fiscal neutrality must be interpreted as not precluding national legislation under which, where goods are not in the warehouse of a taxable person to whom they have been supplied and the tax documents of relevance to those goods have not been recorded in the accounts of that taxable person, tax authorities may presume that the taxable person subsequently sold those goods to third parties and determine the taxable amount of the sale of those goods according to the factual information at hand pursuant to rules not provided for in that directive. It is, however, for the national court to ascertain whether the provisions of the national legislation go further than is necessary to ensure the correct collection of value added tax (VAT) and to prevent evasion.

In that regard, a failure to keep accounting records which would allow VAT to be applied and monitored by the tax authorities, and the failure to record the invoices issued and paid are liable to prevent the correct collection of that tax and, therefore, to compromise the proper functioning of the common system of VAT. Therefore, EU law does not prevent Member States from treating such infringements as to tax evasion. Thus, to ensure the correct collection of VAT and to prevent evasion, the first paragraph of Article 273 of Directive 2006/112 provides that Member States may impose obligations other than those provided for in that directive which they deem necessary for such purposes, subject to the requirement of equal treatment as between domestic transactions and transactions carried out between Member States by taxable persons and provided that such obligations do not, in trade between Member States, give rise to formalities connected with the crossing of frontiers. It follows from that provision, from Article 2 and Article 250(1) of the VAT directive and from Article 4(3) TEU that every Member State is under an obligation to take all legislative and administrative measures appropriate for ensuring collection of all the VAT due on its territory and for preventing evasion.

Fraudulent acts of a taxable person, such as concealing supplies and revenue, must not hinder the collection of VAT. In the light of Article 273 of Directive 2006/112, it is for the national competent authorities to re-establish the situation that would have prevailed in the absence of tax evasion. In addition, outside the limits laid down therein, Article 273 of the directive does not specify either the conditions or the obligations which the Member States may impose and therefore gives the Member States a margin of discretion with regard to the means of achieving the objectives for ensuring the collection of VAT and for preventing evasion. However, the measures which the Member States may adopt under Article 273 of Directive 2006/112 must not go further than is necessary to attain such objectives and must not undermine the neutrality of VAT.

(see paras 39-44, 50, operative part)