On October 20, 2016, the ECJ issued its decision in the case C-24/15 (Josef Plöckl).
Context: Reference for a preliminary ruling — Taxation — Value added tax — Sixth Directive — Article 28c(A)(a) and (d) — Intra-Community transfer — Exemption — Possibility for the State of origin to refuse the exemption because of the failure to provide the VAT identification number issued by the State of destination
Article in the EU VAT Directive
Articles 22(8), 28c(A)(a), 28c(A)(d) of the Sixth VAT Directive (Articles 131, 138, 139, 273 of the EU VAT Directive 2006/112/EC).
Article 22(8) of the Sixth Directive
Member States may impose other obligations which they deem necessary for the correct collection of the tax and for the prevention of evasion, subject to the requirement of equal treatment for domestic transactions and transactions carried out between Member States by taxable persons and provided that such obligations do not, in trade between Member States, give rise to formalities connected with the crossing of frontiers.
Article 28c(A)(a) and Article 28c(A)(d) of the Sixth Directive
Without prejudice to other Community provisions and subject to conditions which they shall lay down for the purpose of ensuring the correct and straightforward application of the exemptions provided for below and preventing any evasion, avoidance or abuse, Member States shall exempt:
(a) supplies of goods, as defined in Article 5, dispatched or transported by or on behalf of the vendor or the person acquiring the goods out of the territory referred to in Article 3 but within the Community, effected for another taxable person or a non-taxable legal person acting as such in a Member State other than that of the departure of the dispatch or transport of the goods.
(d) the supply of goods, within the meaning of Article 28a(5)(b), which benefit from the exemptions set out above if they have been made on behalf of another taxable person.’
Facts
- In 2006, Mr Plöckl, a sole trader, acquired a vehicle which he assigned to his undertaking. On 20 October 2006, he dispatched the vehicle to a dealer established in Spain with a view to selling it in Spain. That dispatch was evidenced by a CMR consignment note (dispatch note drawn up on the basis of the Convention on the Contract for the International Carriage of Goods by Road, signed in Geneva on 19 May 1956, as amended by the Protocol of 5 July 1978). On 11 July 2007, the vehicle was sold to an undertaking established in Spain.
- Mr Plöckl did not declare any turnover in respect of that transaction for 2006. For 2007, he declared a VAT-exempt intra-Community supply to that undertaking.
- In the context of an external audit, the Tax Office took the view that the conditions applicable to an intra-Community supply were not satisfied and that the transaction was a supply which was required to be taxed in Germany in respect of the year 2007. It therefore issued a VAT amendment notice for 2007.
- During the subsequent proceedings before the Finanzgericht München (Finance Court, Munich, Germany), that court established that the vehicle at issue in the main proceedings was already in Spain in 2007, which led the Tax Office to annul that amendment notice.
- Following that annulment, the Tax Office corrected the VAT calculation for 2006, taking the view that the transfer of the vehicle to Spain in 2006 was subject to VAT and was not exempt, since Mr Plöckl had not provided a VAT identification number issued by Spain and had not, therefore, produced the accounting evidence required for the purposes of exemption from VAT.
- Mr Plöckl brought an action against that decision before the referring court. That court is of the view, first, that there was no intra-Community supply owing to the absence of a sufficient temporal and material link between the dispatch of the vehicle to Spain and its sale in Spain and, secondly, that the intra-Community transfer effected in 2006 is subject to VAT under Paragraph 3(1a) of the UStG.
- However, the referring court wonders whether that transfer should be exempt from VAT. It notes that, while Mr Plöckl did not take all reasonable measures to provide a VAT identification number issued by the Member State of destination, there is no specific evidence of tax evasion and the Tax Office rules out any such evasion. According to the referring court, Mr Plöckl simply made an error of law in recording the transfer and subsequent sale as an intra-Community supply and did not make a false statement to the Tax Office.
Questions
Do Article 22(8), the first subparagraph of Article 28c(A)(a) and Article 28c(A)(d) of Sixth Council Directive 77/388/EEC 1 of 17 May 1977 permit Member States to refuse to grant a tax exemption in respect of an intra-Community supply (in this instance, an intra-Community transfer) where, although the supplier has not taken all the measures that can reasonably be expected of him from the point of view of the formal requirements applicable to the recording of the [VAT] identification number, there is no specific evidence of tax evasion, the goods have been moved to another Member State and the other conditions of exemption from tax are also met?
AG Opinion
Article 22(8), the first subparagraph of Article 28c(A)(a) and Article 28c(A)(d) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 2005/92/EC of 12 December 2005, must be interpreted as precluding the tax authority of the State of origin from refusing to exempt an intra-Community transfer on the ground that the taxable person has not provided a VAT identification number issued by the State of destination, where there is no specific evidence of tax evasion, the goods have been moved to another Member State and the other conditions of exemption from tax are also met.
Decision
Article 22(8) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 2005/92/EC of 12 December 2005, in the version resulting from Article 28h of that Sixth Directive, and the first subparagraph of Article 28c(A)(a) and Article 28c(A)(d) of that directive must be interpreted as precluding a tax authority of the Member State of origin from refusing to exempt an intra-Community transfer from VAT on the ground that the taxable person has not provided a VAT identification number issued by the Member State of destination, where there is no specific evidence of tax evasion, the goods have been moved to another Member State and the other conditions of exemption from tax are also met.
Summary
The VAT Directive precludes the Member State of origin from refusing to grant VAT exemption for an intra-Community transfer on the ground that the taxable person has not communicated a VAT identification number assigned by the Member State of destination, where there are no serious indications of fraud, the property has been transferred to another Member State and the other exemption conditions are also fulfilled.
Source
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