‘Evita-K’ EOOD v Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — Sofia pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite.
Date: 2013-07-18
33. It must be borne in mind that, according to settled case-law of the Court, the concept of ‘supply of goods’ referred to in Article 14(1) of Directive 2006/112 does not refer to the transfer of ownership in accordance with the procedures prescribed by the applicable national law but covers any transfer of tangible property by one party which empowers the other party actually to dispose of it as if he were its owner (see Case C‑320/88 Shipping and Forwarding Enterprise Safe  [1990] ECR I‑285, paragraph 7; Case C‑435/03 British American Tobacco and Newman Shipping  [2005] ECR I‑7077, paragraph 35; and Case C‑237/09 De Fruytier  [2010] ECR I‑4985, paragraph 24).
34. In that context, it is for the national court to determine in each individual case, on the basis of the facts of the case, whether there is a transfer of the right to dispose of the property as owner (see Shipping and Forwarding Enterprise Safe , paragraph 13).
37. Moreover, in so far as it is apparent from the order for reference that the Bulgarian tax authorities refused Evita‑K the right to deduct VAT relating to the supplies of goods at issue in the main proceedings on the ground that it was not established that those supplies had in fact been carried out, and in so far as the assertion that they were not carried out is disputed by Evita‑K, it must be borne in the mind that, first, it is for the person seeking deduction of VAT to establish that he meets the conditions for eligibility (see Case C‑230/94 Enkler  [1996] ECR I‑4517, paragraph 24), and, second, it is for the referring court to carry out, in accordance with the national rules relating to evidence, an overall assessment of all the facts and circumstances of the dispute in the main proceedings in order to determine whether Evita‑K may exercise a right to deduct on the basis of those supplies of goods (see, to that effect, Case C‑273/11 Mecsek-Gabona  [2012] ECR I‑0000, paragraph 53; Case C‑285/11 Bonik  [2012] ECR I‑0000, paragraph 32; and Case C‑643/11 LVK – 56  [2013] ECR I‑0000, paragraph 57).
39. In that context it is incumbent upon the national authorities and courts to refuse the right of deduction where it is established, on the basis of objective evidence, that that right is being relied on for fraudulent or abusive ends (see, to that effect, Joined Cases C‑439/04 and C‑440/04 Kittel and Recolta Recycling  [2006] ECR I‑6161, paragraph 55; Joined Cases C‑80/11 and C‑142/11 Mahagében and Dávid  [2012] ECR I‑0000, paragraph 42; Bonik , paragraph 37; and LVK – 56 , paragraph 59).
40. That is the position where a tax fraud is committed by the taxable person himself or when he knew, or should have known, that, by his purchase, he was taking part in a transaction connected with VAT fraud (see Bonik , paragraphs 38 and 39 and the case-law cited).
41. By contrast, it is incompatible with the rules governing the right to deduct under Directive 2006/112 to impose a penalty, in the form of a refusal of that right, on a taxable person who did not know, and could not have known, that the transaction concerned was connected with fraud committed by the supplier, or that another transaction forming part of the chain of supply prior or subsequent to the transaction carried out by the taxable person was vitiated by VAT fraud (see Joined Cases C‑354/03, C‑355/03 and C‑484/03 Optigen and Others  [2006] ECR I‑483, paragraphs 52 and 55; Kittel and Recolta Recycling , paragraphs 45, 46 and 60; Mahagében and Dávid , paragraph 47; Bonik , paragraph 41; and LVK – 56 , paragraph 60).
42. Furthermore, the Court has already held that the tax authorities cannot, as a general rule, require the taxable person wishing to exercise the right to deduct VAT to ensure that the issuer of the invoice relating to the goods and services in respect of which the exercise of that right is sought has the capacity of a taxable person, that he was in possession of the goods at issue and was in a position to supply them and that he has satisfied his obligations as regards declaration and payment of VAT, in order to be satisfied that there are no irregularities or fraud at the level of the traders upstream, or, second, to be in possession of documents in that regard (see Mahagében and Dávid , paragraph 61, and LVK – 56 , paragraph 61). Likewise, those authorities cannot require that taxable person to produce documents issued by that issuer and mentioning the ear tags of the animals subject to the identification and registration system established by Regulation No 1760/2000.
49. In this regard, it must be borne in mind that, under Article 178(a) of Directive 2006/112, the exercise of the right of deduction referred to in Article 168(a) of that directive is subject to the possession of an invoice. In accordance with Article 220(1) of Directive 2006/112, an invoice must thus be issued for every supply of goods or services which a taxable person makes on behalf of another taxable person (see Case C‑368/09 Pannon Gép Centrum  [2010] ECR I‑7467, paragraph 39, and Case C‑280/10 Polski Trawertyn  [2012] ECR I‑0000, paragraph 41).
50. Article 226 of Directive 2006/112 states that, without prejudice to the particular provisions of that directive, only the details listed in that article must mandatorily appear, for VAT purposes, on invoices issued pursuant to Article 220 of that directive (see Pannon Gép Centrum , paragraph 40, and Polski Trawertyn , paragraph 41).
51. It follows that it is not open to Member States to make the exercise of the right to deduct VAT dependent on compliance with conditions relating to the content of invoices which are not expressly laid down by the provisions of Directive 2006/112. That interpretation is supported by Article 273 thereof, which provides, first, that Member States may impose obligations which they deem necessary to ensure the correct collection of VAT and to prevent evasion, but, second, that that option may not be relied upon in order to impose additional invoicing obligations over and above those laid down by, inter alia, Article 226 of that directive (see Pannon Gép Centrum , paragraph 41, and Polski Trawertyn , paragraph 42).
58. So far as concerns the creation of an obligation to adjust an input VAT deduction, Article 185(1) of Directive 2006/112 establishes the principle that such an adjustment is carried out in particular where, after the VAT return has been made, some change occurs in the factors used to determine the amount to be deducted (Case C‑257/11 Gran Via Moineşti [2012] ECR I‑0000, paragraph 40).