ЕТ „Маya Маrinova“ v Direktor na Direktsia „Obzhalvane i danachno-osiguritelna praktika“ Veliko Tarnovo pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite.
Date: 2016-10-05
39


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 amounting to tax evasion (see, to that effect, judgments of 7 December 2010, R., C‑285/09, EU:C:2010:742, paragraphs 48 and 49, and of 28 July 2016, Astone, C‑332/15, EU:C:2016:614, paragraph 56).
41


The Court has established that 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 (judgment of 9 July 2015, Cabinet Medical Veterinar Dr. Tomoiagă Andrei, C‑144/14, EU:C:2015:452, paragraph 25 and the case-law cited).
42


In that regard, the Court notes that 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 the directive and the case-law cited in the previous paragraph, it is for the national competent authorities to re-establish the situation that would have prevailed in the absence of tax evasion.
43


In addition, the Court has held that, outside the limits laid down therein, Article 273 of the VAT 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 recalled in paragraph 41 above (see, to that effect, judgments of 26 January 2012, Kraft Foods Polska, C‑588/10, EU:C:2012:40, paragraph 23, and of 26 March 2015, Macikowski, C‑499/13, EU:C:2015:201, paragraph 36).
44


However, the measures which the Member States may adopt under Article 273 of the VAT directive to ensure the correct collection of the tax and to prevent evasion must not go further than is necessary to attain such objectives and must not undermine the neutrality of VAT (see judgment of 26 March 2015, Macikowski, C‑499/13, EU:C:2015:201, paragraph 37 and the case-law cited).
46


It is for the referring court to determine whether the national measures at issue in the main proceedings are compatible with the requirements stated in paragraph 44 above having regard to all the circumstances of the case in the main proceedings. The Court may, however, provide it with any helpful guidance to resolve the dispute before it (see, to that effect, judgment of 28 July 2016, Astone, C‑332/15, EU:C:2016:614, paragraph 36 and the case-law cited).
49


Second, as regards the principle of fiscal neutrality which was intended by the EU legislature to reflect, in matters relating to VAT, the general principle of equal treatment (see judgments of 29 October 2009, NCC Construction Danmark, C‑174/08, EU:C:2009:669, paragraph 41, and of 5 March 2015, Commission v Luxembourg, C‑502/13, EU:C:2015:143, paragraph 50), it must be held that taxpayers who have committed tax evasion consisting, inter alia, in the concealment of taxable transactions and the resulting revenue are not in a situation comparable to that of taxpayers who comply with their obligations in relation to accounting, filing VAT returns and the payment of VAT. Accordingly, that principle cannot legitimately be invoked by a taxable person who has intentionally participated in tax evasion and who has jeopardised the operation of the common system of VAT (see, to that effect, judgments of 18 December 2014, Schoenimport Italmoda Mariano Previti and Others, C‑131/13, C‑163/13 and C‑164/13, EU:C:2014:2455, paragraph 48, and of 28 July 2016, Astone, C‑332/15, EU:C:2016:614, paragraph 58).