Kopalnia Odkrywkowa Polski Trawertyn P. Granatowicz, M. Wąsiewicz spółka jawna v Dyrektor Izby Skarbowej w Poznaniu.
Date: 2012-03-01
28. Before replying to that question, it should be noted, first, that according to the case-law of the Court, the economic activities referred to in Article 4(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 (OJ 1977 L 145, p. 1, ‘Sixth Directive’), which is in essence identical to the first subparagraph of Article 9(1) of Directive 2006/112, may consist in several consecutive transactions and that preparatory acts, such as the acquisition of business assets and therefore the purchase of immovable property, must themselves be treated as constituting economic activity (see, inter alia, Case 268/83 Rompelman  [1985] ECR 655, paragraph 22, and Case C‑110/94 INZO [1996] ECR I‑857, paragraph 15).
29. The Court has also held that the principle that VAT should be neutral as regards the tax burden on a business requires that the first investment expenditure incurred for the purposes of and with the view to commencing a business must be regarded as an economic activity and that it would be contrary to that principle if such an activity did not commence until the property was actually exploited, that is to say until it began to yield taxable income. Any other interpretation would burden the trader with the cost of VAT in the course of his economic activity without allowing him to deduct it and would create an arbitrary distinction between investment expenditure incurred before actual exploitation of immovable property and expenditure incurred during exploitation (see, inter alia, Rompelman , paragraph 23, and INZO , paragraph 16).
30. The Court concluded therefrom that anyone who carries out such investment transactions which are closely connected with and necessary for the future exploitation of immovable property must be regarded as a taxable person within the meaning of the Sixth Directive (see Rompelman , paragraph 23).
32. Therefore, the fact that the contribution of an immovable property to a partnership by its partners is a transaction exempted from VAT and the fact that those partners do not pay VAT upon that transaction cannot have the consequence of burdening them with the cost of the VAT in the context of their economic activity without any possibility of their deducting it or of obtaining a refund (see, to that effect, Rompelman , paragraph 23).
33. Second, it should be noted that the Court has held that, in applying the principle of neutrality of VAT, a taxable person whose sole object is to prepare the economic activity of another taxable person and who has not effected any taxable transaction may exercise a right to deduct in relation to taxable transactions carried out by the other taxable person (see, to that effect, Case C‑137/02 Faxworld  [2004] ECR I‑5547, paragraphs 41 and 42). That interpretation of the Sixth Directive concerned a situation where the VAT which the first taxable person wished to deduct related to supplies acquired by it for the purpose of carrying out taxable transactions planned by the second taxable person.
35. It must therefore be held that, in so far as, under national legislation, the partners, even though they may be considered taxable persons for the purposes of VAT, are unable to rely on the taxable transactions effected by Polski Trawertyn in order to relieve the cost of the VAT on investment transactions effected for the purposes of and with the view to the activity of that partnership, the latter must, in order to ensure the neutrality of taxation, be entitled to take account of those investment transactions when deducting VAT (see, to that effect, Faxworld , paragraph 42).
37. According to the case-law of the Court, the status of taxable person is not achieved and the right to deduct may not be exercised until the person seeking to deduct the VAT has established that the relevant conditions are fulfilled and that his intention to commence the economic activities giving rise to taxable transactions is confirmed by objective evidence. If the tax authorities were to conclude that the right to deduct has been exercised fraudulently or abusively, they would be entitled to demand, with retrospective effect, repayment of the amounts deducted (see, inter alia, Rompelman , paragraph 24; INZO , paragraph 24; and Case C‑32/03 Fini H  [2005] ECR I‑1599, paragraph 33).
40. In that regard, it should be noted that the right to deduct provided for in Article 167 et seq. of Directive 2006/112 is an integral part of the VAT scheme and in principle may not be limited. The right to deduct is exercisable immediately in respect of all the taxes charged on transactions relating to inputs (Case C‑368/09 Pannon Gép Centrum [2010] ECR I‑0000, paragraph 37 and the case-law cited).
41. As regards the formal requirements of that right, it is apparent from Article 178(a) of Directive 2006/112 that its exercise is subject to the holding of an invoice. Article 226 of Directive 206/112 states that, without prejudice to the particular provisions of that directive, only the details set out in that article are required for VAT purposes on invoices issued pursuant to Article 220 of that directive. Under Article 226(1) and (5) of the directive, the date of issue of the invoice and the full name as well as the address of the taxable person and of the customer must thus appear on the invoice.
42. 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. Under Article 273 of that directive, Member States may impose obligations which they deem necessary to ensure the correct collection of VAT and to prevent evasion, but cannot rely on that power in order to impose additional obligations over and above those laid down by that directive (see Pannon Gép Centrum , paragraph 40).
43. In addition, the Court has held that the principle of VAT neutrality requires that deduction of input tax be allowed if the substantive requirements are satisfied, even if the taxable person has failed to comply with some of the formal requirements. Where the tax authority has the information necessary to establish that the taxable person is, as the recipient of the supplies in question, liable to VAT, it cannot impose, in relation to the taxable person’s right to deduct that tax, additional conditions which may have the effect of rendering that right ineffective (see, as regards the reverse charge procedure, Case C‑385/09 Nidera Handelscompagnie  [2010] ECR I‑0000, paragraph 42).
47. According to the case-law, first, while it is true that there is an obligation on taxable persons, pursuant to Article 213 of Directive 2006/112, to state when their activity commences, changes or ceases, the Member States are in no way authorised, in the event of such a declaration not being submitted, to deprive the taxable person of that right (see Nidera Handelscompagnie , paragraph 48).
48. The Court has held, second, that, while it is true that an invoice has an important documentary function because it may contain verifiable data, there are circumstances in which the data may be legitimately established by means other than by an invoice and where the requirement to have an invoice in full conformity with the provisions of Directive 2006/112 would be capable of affecting the right of a taxable person to deduct (see, to that effect, Case C‑90/02 Bockemühl [2004] ECR I‑3303, paragraphs 51 and 52).