Case C-502/07: Reference for a preliminary ruling from the Naczelny Sąd Administracyjny (Poland) lodged on 16 November 2007 — K-1 sp. z o.o. v Dyrektor Izby Skarbowej w Bydgoszczy
Date: 2007-11-16
Institutions: Court of Justice
Subjects: VAT, goods and services, interpretation of the law, tax harmonisation, tax on consumption, tax system

C 22/30

EN

Official Journal of the European Union

26.1.2008

2. If so, must Council Directive 90/435/EEC of 23 July 1990
on the common system of taxation applicable in the case of
parent companies and subsidiaries of different Member
States, in particular Article 4(1) thereof, then be construed as
obliging this Member State to make the distribution of
profits which a company of this Member State receives from
its subsidiary of another Member State deductible in full
from the amount of profits made in the taxable period and
to make any resulting loss transferable to a later taxable
period?

Parties to the main proceedings

Applicant: K-1 sp. z o.o.

Defendant: Dyrektor Izby Skarbowej w Bydgoszczy

3. If

the

aforementioned Directive 90/435/EEC must be
construed as meaning that the Belgian rule is contrary to
Article 4(1) with regard to distributed profits received by the
Belgian parent company from a subsidiary established in the
EU, must it then be determined that the aforementioned
provision of the Directive is also incompatible with the appli-
cation of the Belgian rule to distributed profits received by a
Belgian parent company from a Belgian subsidiary where, as
in the present case, the Belgian legislature, in transposing the
Directive into Belgian law, has chosen to apply the same
treatment to purely internal situations and to those governed
by the Directive and has therefore aligned the Belgian legisla-
tion with the Directive also for purely internal situations?

4. Does Article 43 EC preclude the application of a legislative
rule of a Member State under which, for the purposes of
assessment to corporation tax, the exemption of the distrib-
uted profits received during a taxable period by a company
from its subsidiary established in another Member State is
limited in the first Member State to the amount of the profit
made in the taxable period during which the profits were
distributed (after certain statutorily defined deductions),
whereas a full exemption of the distributed profits would be
possible if that company had set up a permanent establish-
ment in that other Member State?

(1) OJ L 225, p. 6.

Reference for a preliminary ruling from the Naczelny Sąd
Administracyjny (Poland) lodged on 16 November 2007 —
K-1 sp. z o.o. v Dyrektor Izby Skarbowej w Bydgoszczy

(Case C-502/07)

(2008/C 22/55)

Language of the case: Polish

Referring court

Naczelny Sąd Administracyjny

Questions referred

the laws of

1. Do the first and second paragraphs of Article 2 of First
Council Directive 67/227/EEC (1) of 11 April 1967 on the
harmonisation of
legislation of Member States concerning
turnover taxes, in conjunction with Articles 2, 10(1)(a) and
10(2) of Sixth Council Directive 77/388/EEC (2) of 17 May
1977 on the harmonisation of
the Member
States relating to turnover taxes — Common system of value
added tax: uniform basis of assessment, rule out the possibi-
lity of imposing an obligation on a taxable person for the
purpose of tax on goods and services to pay an additional
tax liability within the terms of Article 109(5) and (6) of the
Ustawa o Podatku od Towarów i Usług (Law on the tax on
goods and services) of 11 March 2004 (Dz. U. No 54,
pos 535 with amendments) in the event that it is established
that the taxable person for the purpose of tax on goods and
services
indicated in the tax declaration submitted an
amount of the tax difference to be repaid or the input tax to
be repaid which is greater than the amount due?

2. Can ‘special measures’ within the terms of Article 27(1) of
the Sixth Council Directive 77/388/EEC of 17 May 1977 on
the harmonisation of the laws of the Member States relating
to turnover taxes — Common system of value added tax:
uniform basis of assessment, consist, having regard to their
character and purpose, in the possibility of imposing on a
taxable person for the purpose of tax on goods and services
an additional tax liability fixed by a decision of
the tax
authority where it is established that the taxable person has
declared an overstated amount of the tax difference to be
repaid or an overstated amount of input tax to be repaid?

3. Does the power provided for by Article 33 of the Sixth
Council Directive 77/388/EEC of 17 May 1977 on the
harmonisation of the laws of the Member States relating to
turnover taxes — Common system of value added tax:
uniform basis of assessment, encompass the right to intro-
duce the additional tax liability laid down in Article 109(5)
and (6) of the Ustawa o Podatku od Towarów i Usług of
11 March 2004 (Dz. U. No 54, pos 535 with amendments)?

(1) OJ, English Special Edition 1967, p. 14.
(2) OJ 1977 L 145, p. 1.