Article in the EU VAT Directive
Taxable amount: 69
Invoicing: 206
Facts
A Polish referral asking whether Article 110 of the Treaty on the Functioning of the European Union and Article 273 of the VAT Directive preclude a national provision under which, in the case of intra-Community acquisitions of motor fuel, a taxable person is required, without being summoned to do so by the director of the customs office, to calculate the amounts of VAT and to pay those amounts to the bank account of the customs office responsible for paying excise duty within five days of the date on which the fuel was introduced into the territory?
- The tax authorities found that the applicant acquired diesel oil of CN code 2710 19 43 in December 2016 and was therefore obliged, in accordance with Article 103 (5a) of the Law on the tax on goods and services (uptu), to provide within 5 days of each of to pay VAT on the 20 transactions in which it brought such goods into national territory, which the applicant failed to do.
- It also failed to submit the VAT-VAT return for the period covered by this procedure, although in the case of an intra-Community acquisition of the goods referred to in Article 103 (5a) uptu, every taxable person is required to the 5th of the month following the month in which the obligation to pay the tax arose, to declare the monthly amounts of VAT due to the head of the customs office competent for settling the excise duty.
- Consequently, it has been established that the VAT amount of PLN 1 530 766 for December 2016 constitutes a tax arrears which, together with the default interest due, had to be paid immediately to the bank account of the tax authorities.
- The applicant challenged that decision before the Polish administrative court of first instance, which rejected the complaint lodged.
- The applicant then brought an appeal in cassation against that judgment before the highest administrative court in Poland.
Recital:
- The law was amended on 01-08-2016 to amend the law on the tax on goods and services and certain others entered into force.
- For this change, in the case of an intra-Community acquisition of motor fuels, no VAT had to be paid at the time of acquisition, since the active person liable for VAT had in principle to settle this acquisition by means of the VAT-7 declaration, against the 25th of the month after each successive tax period.
- It has been argued in the cassation appeal that the new regime of Article 103 (5a) uptu is contrary to Article 110 TFEU, since it introduces a tax that discriminates against goods originating from other Member States.
- This also follows from the case-law of the Court.
- A longer period for payment of tax means that the trader concerned obtains a specific economic advantage and, on the other hand, finds himself in a less favorable financial situation if the period for payment of tax on goods from other Member States is shortened.
- Member States may set time limits for payment of VAT but must comply with the requirements of Article 273 of the VAT Directive.
- The question therefore arises whether Article 110 TFEU and Article 273 of the VAT Directive preclude a provision on accelerated payments of VAT such as Article 103 (5a), uptu.
- If the scheme is not contrary to Union law, the second question is or the payments of tax within the meaning of Article 103 (5a) uptu concern a separately regulated accelerated taxation of VAT or provisional advance payments of this tax within the meaning of Article 206 of the VAT Directive.
- Finally, the referring court wonders whether an advance payment of VAT within the meaning of Article 206 of the VAT Directive, which is not made on time, loses its legal existence at the end of the tax period for which it must be made.
- This is relevant for determining whether the extent of advance payments should be determined after the end of the tax period and for determining up to which date interest on the advance payments not made must be calculated.
Question
Do Article 110 of the Treaty on the Functioning of the European Union and Article 273 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added not preclude a provision such as Article 103(5a) of the Ustawa z dnia 11 marca 2004 r. o podatku od towarów i usług (Law of 11 March 2004 on the tax on goods and services), which stipulates that, in the case of an intra-Community acquisition of motor fuels, the taxable person is obliged, without being called upon to do so by the head of the customs office, to calculate and pay the amounts of tax to the account of the customs office competent for dealing with the payment of excise duty:
(a) within 5 days of the date on which the goods in question enter the place of receipt of excise goods specified in the relevant permit — if the goods are the subject of intra-Community acquisition within the meaning of the Ustawa z dnia 6 grudnia 2008 r. o podatku akcyzowym (Law of 6 December 2008 on excise duty) by a registered consignee under the excise duty suspension procedure pursuant to the provisions on excise duty;
(b) within 5 days of the date on which such goods enter a tax warehouse from the territory of a Member State other than Poland;
(c) upon the movement of these goods within the territory of Poland — if the goods are moved outside of the excise duty suspension procedure pursuant to the provisions on excise duty?
Does Article 69 of Directive 2006/112/EC preclude a provision such as Article 103(5a) of the VAT Law, which stipulates that, in the case of the intra-Community acquisition of motor fuels, the taxable person is obliged, without being called upon to do so by the head of a customs office, to calculate and pay the amounts of tax to the account of the customs office competent for dealing with the payment of excise duty:
(a) within 5 days of the date on which the goods in question enter the place of receipt of excise goods specified in the relevant permit — if the goods are the subject of intra-Community acquisition within the meaning of the Law of 6 December 2008 on excise duty by a registered consignee under the excise duty suspension procedure pursuant to the provisions on excise duty;
(b) within 5 days of the date on which such goods enter a tax warehouse from the territory of a Member State other than Poland;
(c) upon the movement of these goods within the territory of Poland — if the goods are moved outside of the excise duty suspension procedure pursuant to the provisions on excise duty:
– where the above amounts are interpreted as not constituting interim VAT payments within the meaning of Article 206 of Directive 2006/112/EC?
Does an interim VAT payment within the meaning of Article 206 of Directive 2006/112/EC which is not paid on time lose its legal status at the end of the tax period for which it is to be paid?
Source
References to other ECJ Cases
(Recent) case law cited: Commission v Ireland (C-55/79), Grundig Italiana (C-68/96), (C-499/13),
