Case C‑111/14
GST— Sarviz AG Germania
v
Direktor na Direktsia ‘Obzhalvane i danachno-osiguritelna praktika’ Plovdiv pri Tsentralno upravlenie na Natisonalnata agentsia za prihodite
(Request for a preliminary ruling from the
Varhoven administrativen sad)
(Common system of value added tax— Directive 2006/112/EC— Principle of fiscal neutrality— Person liable for payment of VAT— Erroneous payment of VAT by the person to whom the supply is made— Liability to VAT of the supplier of services— Refusal to grant the supplier of services a refund of the VAT)
Summary— Judgment of the Court (Sixth Chamber), 23April 2015
1.Harmonisation of fiscal legislation— Common system of value added tax— Person liable for the tax— Taxable person supplying services from a fixed establishment located in the Member State of collection of the tax— Included
(Council Directive 2006/112, as amended by Directive 2010/88, Arts 193 and 194)
2.Harmonisation of fiscal legislation— Common system of value added tax— Person liable for the tax— Recipient of services supplied from a fixed establishment of the supplier located in the same Member State— Recipient having already paid the tax on the basis of the presumed non-existence of a fixed establishment of the supplier in that State— Mistaken assumption— Possibility of the tax authorities regarding that recipient as liable for the tax— None
(Council Directive 2006/112, as amended by Directive 2010/88, Art. 194)
3.Harmonisation of fiscal legislation— Common system of value added tax— Principle of fiscal neutrality— Scope
(Council Directive 2006/112, as amended by Directive 2010/88)
4.Harmonisation of fiscal legislation— Common system of value added tax— Principle of fiscal neutrality— National legislation permitting the tax authorities to refuse to grant the supplier a refund of the tax paid— Impossibility of the supplier adjusting the invoices— Unlawful
(Council Directive 2006/112, as amended by Directive 2010/88)
1.Article193 of Directive 2006/112 on the common system of value added tax, as amended by Directive 2010/88, must be interpreted as meaning that the only person liable to pay the value added tax is the taxable person supplying services, where those services were supplied from a fixed establishment located in the Member State in which the value added tax is payable.
Under Articles 193 and 194 of that directive, only the supplier of services is, in principle, liable for payment of value added tax, except where the supplier is not established in the Member State in which the tax is due and where that State has provided that the person liable for payment of the tax is the person to whom the services are supplied.
(see paras 22, 25, operative part 1)
2.Article 194 of Directive 2006/112 on the common system of value added tax, as amended by Directive 2010/88, must be interpreted as not permitting the tax authorities of a Member State to regard as liable for the payment of value added tax the recipient of services supplied from a fixed establishment of the supplier, where both the latter and the recipient of those services are established in the territory of the same Member State, even if that recipient has already paid that tax on the mistaken assumption that the supplier did not have a fixed establishment in that State.
The possibility of the Member States providing for the application of the reverse charge procedure is limited, by virtue of Article 194 of the directive, solely to situations in which the supplier of services is not established in the Member State in which the value added tax is due.
(see paras 27, 30, operative part 2)
3.See the text of the decision.
(see paras 32-34, 37-40)
4.The principle of the neutrality of value added tax must be interpreted as precluding a national provision which permits the tax authorities to refuse to grant the supplier of services a refund of the value added tax which the supplier has paid, when the recipient of those services, who has also paid the value added tax in respect of the same services, is refused the right of deduction on the ground that that recipient did not have the corresponding tax document, any adjustment of tax documents being precluded under national law where a definitive tax adjustment notice exists.
Such a practice is tantamount to requiring both the supplier of services and the recipient of those services to bear the fiscal burden of that tax, and results in the tax authorities collecting an amount of value added tax exceeding the amount which the supplier would normally have had to collect from the recipient if the supplier had been able to adjust the invoices issued.
(see paras 41, 42, operative part 3)