Minister Finansów v Kraft Foods Polska SA.
Date: 2012-01-26
23. Given that Articles 90(1) and 273 of the VAT Directive do not, outside the limits laid down therein, specify either the conditions or the obligations which the Member States may impose, it must be held that those provisions give the 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 of those States in order to ensure that, where the price is reduced after the supply has taken place, the taxable amount is reduced accordingly.
24. In the present case, it is common ground that, where the price is reduced after the supply has taken place, under the Polish legislation at issue in the main proceedings, the corresponding reduction of the taxable amount is contingent on the ta xable person being in possession of acknowledgment of receipt of a correcting invoice by the purchaser of the goods or services and that the purpose of that requirement is to ensure the correct collection of VAT and to prevent evasion, as submitted by, among others, the Polish Government.
25. Such a requirement amounts, at the same time, to a condition for the purpose of Article 90(1) of the VAT Directive and an obligation for the purpose of Article 273 of the directive.
26. As to whether the principles of VAT neutrality and proportionality preclude such a requirement, it must be noted that Article 90(1) of the VAT Directive 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 (see Case C‑330/95 Goldsmiths  [1997] ECR I‑3801, paragraph 16).
27. That provision embodies one of the fundamental principles of the VAT Directive, according to which the basis of assessment is the consideration actually received and the corollary of which is that the tax authorities may not in any circumstances charge an amount of VAT exceeding the tax paid by the taxable person (see, to that effect, Goldsmiths , paragraph 15).
28. It is also apparent from case‑law that measures to prevent tax evasion or avoidance may not, in principle, derogate from the basis for charging VAT 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 VAT neutrality, which is a fundamental principle of the common system of VAT established by the relevant European Union legislation (see, to that effect, Goldsmiths , paragraph 21; Case C‑566/07 Stadeco  [2009] ECR I‑5295, paragraph 39 and the case-law cited: and Case C‑489/09 Vandoorne  [2011] ECR I‑225, paragraph 27).
29. Consequently, if reimbursement of the VAT becomes impossible or excessively difficult as a result of the conditions under which applications for reimbursement of tax may be made, those principles may require that the Member States provide for the instruments and the detailed procedural rules necessary to enable the taxable person to recover the unduly invoiced tax ( Stadeco , paragraph 40 and the case-law cited).
30. Moreover, as regards the possibility, under Article 183 of the VAT Directive, of providing that excess VAT is to be carried forward to the following tax period or refunded, the Court has made it clear that the conditions for the refund of excess VAT cannot undermine the principle of fiscal neutrality by making the taxable person bear the burden of the VAT in whole or in part (Case C‑274/10 Commission v Hungary [2011] ECR I‑7289, paragraph 45).
31. The Court has stated that such conditions must enable the taxable person, in appropriate circumstances, to recover the entirety of the credit arising from that excess VAT. This implies that the refund is to be made within a reasonable period of time ( Commission  v Hungary , paragraph 45).
32. In the present case, it is to be noted that possession on the part of the supplier of goods or services of acknowledgment of receipt of a correcting invoice by the purchaser of the goods or services is capable of proving that the latter is aware of the fact that he must calculate any entitlement to deduct VAT on the basis of the correcting invoice.
33. The requirement at issue in the main proceedings may, in principle, contribute not only to ensuring the correct collection of VAT and preventing evasion but also to eliminating the risk of loss of tax revenue. It follows that the Republic of Poland is fully entitled to submit that that requirement pursues the legitimate objectives set out in Articles 90(1) and 273 of the VAT Directive.
34. The Republic of Poland stated before the Court that the requirement at issue in the main proceedings, first, applies only to domestic transactions and, second, is not qualified by any condition as to form and may therefore be satisfied by any appropriate means. It argued that that requirement may be regarded, in principle, as not excessively onerous for taxable persons who are suppliers of goods or services.
37. Moreover, given that possession of the acknowledgment of receipt in question enables the supplier of goods or services to calculate the VAT payable on the basis of the amounts set out in the corrected invoice or to recover all the excess VAT paid to the tax authorities, that requirement does not, in principle, undermine VAT neutrality.