GST – Sarviz AG Germania v Direktor na Direktsia „Obzhalvane i danachno-osiguritelna praktika“ Plovdiv pri Tsentralno upravlenie na Natisonalnata agentsia za prihodite.
Date: 2015-04-23
28. It follows from this that where those services have been supplied from a fixed establishment of the supplier located in the territory of the Member State in which the VAT is due, the recipient of those services cannot be regarded as being liable for payment of the VAT.
29. In that regard, the fact that the recipient of those services has paid the VAT on the mistaken assumption that the supplier did not have a fixed establishment within the meaning of the VAT Directive cannot authorise the tax authorities to derogate from that rule by finding that the person liable to pay the VAT is not the supplier but the recipient.
32. It should, first of all, be borne in mind that the Court has repeatedly held that the principle of the neutrality of VAT manifests itself through the deduction system which is meant to relieve the taxable person entirely of the burden of the VAT payable or paid in the course of all 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 in Malburg , C‑204/13, EU:C:2014:147, paragraph 41 and the case-law cited).
33. Secondly, the Court has also held that, in order to ensure the neutrality of VAT, it is for the Member States to provide, in their domestic legal systems, for the possibility of adjusting any tax improperly invoiced where the person who issued the invoice shows that he acted in good faith. However, where the issuer of the invoice has, in sufficient time, wholly eliminated the risk of any loss of tax revenue, the principle of the neutrality of VAT requires that VAT which has been improperly invoiced can be corrected without such adjustment being made conditional by the Member States upon the good faith of the issuer of the relevant invoice. The adjustment cannot be dependent upon the discretion of the tax authority (judgment in Rusedespred , C‑138/12, EU:C:2013:233, paragraphs 26 and 27 and the case-law cited).
34. Thirdly, it should be borne in mind that the measures which the Member States may adopt in order to ensure the correct levying and collection of the tax and for the prevention of fraud must not go further than is necessary to attain such objectives. They may not, therefore, be used in such a way that they would have the effect of undermining the neutrality of VAT, which is a fundamental principle of the common system of VAT established by the relevant EU law (judgment in Rusedespred , C‑138/12, EU:C:2013:233, paragraphs 28 and 29 and the case-law cited).
40. Lastly, it is also important to bear in mind that the principle of the common system of VAT entails the application to goods and services of a general tax on consumption exactly proportional to their price, so that the tax authorities may not charge a VAT amount exceeding the amount thus calculated (see, to that effect, judgment in Tulică and Plavoşin , C‑249/12 and C‑250/12, EU:C:2013:722, paragraphs 32 and 36 and the case-law cited).