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ECJ case C‑446/18 (AGROBET) – Opinion – Retention of the total amount of excess VAT upon a tax inspection in respect of part of the transactions

On 19 December 2019, Advocate General KOKOTT gave its opinion in case C‑446/18 (AGROBET CZ, s.r.o.). The case deals with the question if tax authorities are allowed to defer the refund of the total amount of excess VAT even though only a small part is still the subject of an ongoing tax inspection.

Facts (simplified):

AGROBET CZ, s. r. o. is an undertaking engaged in the import and export of agricultural products and feed in particular. It asked for a VAT refund in its regular VAT Return. The VAT refund included amounts to be deducted in respect of the purchase of rapeseed oil which AGROBET had sold on to a Polish undertaking free of tax (0% intra-Community supply).

The Czech tax authorities initiated a tax inspection because it had doubts as to the correct taxation of the rapeseed oil transactions. The doubts related both to the tax rate applied and to the existence of fictitious transactions in the light of the fact that the rapeseed oil originated from Poland, was traded on without further processing in the Czech Republic and was then sold on again by AGROBET to a consignee in Poland.

Given those doubts, the tax authorities did not grant a refund of the requested VAT. AGROBET thereupon offered to secure the disputed part of the VAT so that the undisputed part could be assessed and the remaining excess VAT paid. The tax authorities declined that offer on the ground that the excess VAT was indivisible and related to the tax period as a whole, not only the part for which the transactions were reported.

Following a request for information by way of international administrative assistance, the Polish tax authorities described the consignee of the rapeseed oil from AGROBET as uncontactable and thus as a ‘missing trader’.

The Nejvyšší správní soud (Supreme Administrative Court, Czech Republic) referred the following question to the Court for a preliminary ruling:

‘Is it consistent with European Union law and in particular with the principle of VAT neutrality for a Member State to adopt a measure which makes the assessment and payment of part of a VAT deduction claimed conditional on the completion of a procedure applying to all taxable transactions in a given tax period?’

Conclusion

The AG is of the opinion that:

It is not consistent with Articles 167 and 168 of the VAT Directive, in the light of the principle of neutrality, to defer the assessment and payment of the undisputed part of the excess VAT claimed for an indefinite period of time until the disputed part of the excess VAT claimed has been adequately inspected.

Source curia

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