On 5 November 2020 the Înalta Curte de Casație și Justiție (Romanian court) raises questions to find out if the principle of neutrality under the VAT Directive allows that an assessment with immediate consequences (refusal of VAT deduction) is first imposed without the tax authorities having all the objective information at that time concerning the involvement of the taxable person in VAT fraud, after which, at the moment of objection, the handling thereof is suspended until the facts have been clarified in a criminal case in which proper investigation is being conducted into the involvement of the taxable person in that fraud. This procedure could also raise questions of compatibility with the right to a fair trial, which is guaranteed by Article 47 of the Charter.
Articles in the EU VAT Directive
Pursuant to Article 267 TFEU, the referring court seeks interpretation of Directive 2006/112, in particular Articles 167, 168 and 178 thereof, and of Article 47 of the Charter of Fundamental Rights of the European Union.
Facts
- The tax authorities carried out an audit at the company Cridar Cons and concluded in 2014 that the conditions for VAT deduction were met.
- In 2015, the public prosecutor’s office opened a criminal investigation in which several people were accused of tax fraud, including the director of Cridar Cons.
- The public prosecutor requested a fiscal re-examination.
- The tax authorities concluded VAT fraud and subsequently (in 2016) refused VAT deductions on everything Cridar Cons purchased from five companies.
- Cridar Cons filed an objection, and subsequently applied to the court of second instance.
- The court of second instance granted the request.
- Cridar Cons then filed an appeal with the second instance court for annulment of the decision on the objection and the tax assessment. This appeal has been rejected.
Questions
- Are Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax and Article 47 of the Charter of Fundamental Rights of the European Union to be interpreted as precluding national legislation pursuant to which the tax authorities, after issuing a notice of assessment refusing to grant a right to deduct input VAT, are permitted to suspend the examination of an
administrative complaint pending the outcome of criminal proceedings that could provide additional objective evidence of the taxable person’s involvement in tax fraud? - Would the answer given by the Court of Justice of the European Union to the first question be different if, during the period for which examination of the administrative complaint is suspended, the taxable person benefits from provisional measures which suspend the effects of the refusal of the right to deduct VAT?
Source: Curia
