Tratave – Tratamento de Águas Residuais do Ave SA v Autoridade Tributária e Aduaneira.
Date: 2018-12-06
29


Article 90(1) of that directive, which relates to cases of cancellation, refusal or total or partial non-payment, or where the price is reduced after the supply takes place, requires the Member States to reduce the taxable amount and, consequently, the amount of VAT payable by the taxable person whenever, after a transaction has been concluded, part or all of the consideration has not been received by the taxable person. That provision embodies one of the fundamental principles of the VAT Directive, according to which the taxable amount is the consideration actually received and the corollary of which is that the tax authorities may not collect an amount of VAT exceeding the tax which the taxable person received (judgments of 26 January 2012, Kraft Foods Polska, C‑588/10, EU:C:2012:40, paragraphs 26 and 27; of 15 May 2014, Almos Agrárkülkereskedelmi, C‑337/13, EU:C:2014:328, paragraph 22; and of 20 December 2017, Boehringer Ingelheim Pharma, C‑462/16, EU:C:2017:1006, paragraph 32).
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Article 90(2) of the VAT Directive, however, allows Member States to derogate from this rule in the case of total or partial non-payment of the transaction price (judgments of 15 May 2014, Almos Agrárkülkereskedelmi, C‑337/13, EU:C:2014:328, paragraph 23, and of 12 October 2017, Lombard Ingatlan Lízing, C‑404/16, EU:C:2017:759, paragraph 27).
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In addition, under Article 273 of the VAT Directive, Member States may impose the obligations which they deem necessary to ensure the correct collection of VAT and to prevent evasion, provided, inter alia, that that option is not relied upon in order to impose additional invoicing obligations over and above those laid down in Chapter 3 of that directive (judgment of 15 May 2014, Almos Agrárkülkereskedelmi, C‑337/13, EU:C:2014:328, paragraph 36).
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Given that Article 90(1) and Article 273 of the VAT Directive do not, outside the limits laid down therein, specify either the conditions or the obligations which Member States may impose, it must be held that those provisions give Member States a margin of discretion, inter alia, as to the formalities to be complied with by taxable persons vis-à-vis the tax authorities, before reducing the taxable amount (judgments of 26 January 2012, Kraft Foods Polska, C‑588/10, EU:C:2012:40, paragraph 23; of 15 May 2014, Almos Agrárkülkereskedelmi, C‑337/13, EU:C:2014:328, paragraph 37; and of 12 October 2017, Lombard Ingatlan Lízing, C‑404/16, EU:C:2017:759, paragraph 42).
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It is, however, apparent from the case-law that measures to prevent tax evasion or avoidance may not, in principle, derogate from the rules relating to the taxable amount except within the limits strictly necessary for achieving that specific aim. They must have as little effect as possible on the objectives and principles of the VAT Directive and may not therefore be used in such a way that they would have the effect of undermining the neutrality of VAT (judgments of 26 January 2012, Kraft Foods Polska, C‑588/10, EU:C:2012:40, paragraph 28; of 15 May 2014, Almos Agrárkülkereskedelmi, C‑337/13, EU:C:2014:328, paragraph 38; and of 12 October 2017, Lombard Ingatlan Lízing, C‑404/16, EU:C:2017:759, paragraph 43).
34


Consequently, the formalities to be complied with by taxable persons in order to exercise, vis-à-vis the tax authorities, the right to reduce the taxable amount for VAT, must be limited to those which make it possible to provide proof that, after the transaction has been concluded, part or all of the consideration will definitely not be received. In that regard, it is for the national courts to ascertain whether that is true of the formalities required by the Member State concerned (judgments of 15 May 2014, Almos Agrárkülkereskedelmi, C‑337/13, EU:C:2014:328, paragraph 39, and of 12 October 2017, Lombard Ingatlan Lízing, C‑404/16, EU:C:2017:759, paragraph 44).
35


In the present case, a requirement such as that in the main proceedings — which makes the corresponding reduction of the taxable amount of a taxable person contingent, in the case of non-payment, on that person giving prior notice to his debtor, if the latter is a taxable person, of his intention to cancel a part or all of the VAT –– falls within the scope of both Article 90(1) and Article 273 of the VAT Directive (see, by analogy, judgment of 26 January 2012, Kraft Foods Polska, C‑588/10, EU:C:2012:40, paragraphs 24 and 25).
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With respect to the principles of fiscal neutrality and proportionality, it must be observed that this requirement, which enables the debtor to be informed of the fact that he must adjust the VAT amount, which he may have been able to deduct as input tax, is likely to contribute not only to ensuring the correct collection of VAT and the avoidance of tax evasion but also to eliminating the risk of loss of tax revenue (see, by analogy, judgment of 26 January 2012, Kraft Foods Polska, C‑588/10, EU:C:2012:40, paragraphs 32 and 33).
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Given that compliance with the requirement in question in the main proceedings enables the taxable person, a supplier of goods or services, to recover all the excess VAT paid to the tax authorities in respect of unpaid debts, that requirement does not, in principle, undermine the neutrality of VAT (see, by analogy, judgment of 26 January 2012, Kraft Foods Polska, C‑588/10, EU:C:2012:40, paragraph 37).
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Such a requirement, therefore, does not appear to be excessively onerous for the taxable person, the supplier of goods or services (see, by analogy, judgment of 26 January 2012, Kraft Foods Polska, C‑588/10, EU:C:2012:40, paragraph 34), a matter which is nevertheless for the referring court to ascertain.