On june 22, 2021, the ECJ issued an Order in the case C-81/20 (SC Mitliv Exim SRL).
Context: Reference for a preliminary ruling – Article 53 (2) and Article 99 of the Rules of Procedure of the Court – Value added tax (VAT) – Directive 2006/112 / EC – Fundamental rights – Ne bis in idem principle – Accumulation of criminal penalties and administrative – Inapplicability – Ancillary tax obligations – Interest on a sum paid by the taxpayer in the context of criminal proceedings
Article in the EU VAT Directive
Articles 2 and 273 of Council Directive 2006/112/EC
Member States may impose other obligations which they deem necessary to ensure the correct collection of VAT and to prevent evasion, subject to the requirement of equal treatment as between 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.
The option under the first paragraph may not be relied upon in order to impose additional invoicing obligations over and above those laid down in Chapter 3.
Criminal proceedings have been brought against the applicant, SC Mitliv Exim SRL, for VAT fraud. Between December 2014 and September 2015, the applicant paid an amount of 3 527 305 in five tax orders, which had been provisionally determined at her expense by the Investigation Department for Organized Crime and Terrorism. Between October 2015 and February 2016, the applicant also carried out a tax audit on VAT and profit tax for the period from January 2010 to June 2015. Her additional profit tax, additional VAT, interest on the additional profit tax, a delay fine in connection with the additional profit tax, interest on the additional VAT and a delay fine in connection with the additional VAT were imposed on 25-02-2016. The amount of RON 3 527 305 that was provisionally charged during the preliminary investigation has been set off against these established obligations. The applicant asked the Directorate-General for Management for Large Taxable Persons to grant interest on that amount. This request was declared unfounded on the ground that the amount paid had been used to nullify the obligation established in the tax assessment of 25-02-2016. On 16-02-2017, the applicant filed an appeal with the highest court of Romania to order the competent tax body to pay interest amounting to RON 696 940 on the provisional payments. The applicant submits that, as a result of the same material facts, the VAT, together with the accessory obligations, was in fact charged twice.
According to the referring court, the present case concerns the possibility of commencing two separate proceedings against the applicant, one administrative and one criminal, for the same material tax evasion offenses, while the payment made during the preliminary investigation is neither in tax nor in civil part of the criminal process is recognized. The applicant stated that it made the payment both to reduce the penalty and to prevent interest and default interest from increasing. The tax authorities did not take this into account in the tax audit as they also imposed interest and delay damages on her for the period in which she paid the additional amount of VAT in advance. In addition, both in the criminal, if a disadvantage was established in the tax proceedings due to evasion of payment of VAT in favor of the treasury. These calculated disadvantages are based on the same material facts. The referring court wonders whether the case-law of the Court and the ECHR, according to which national legislation permitting the cumulation of prosecution and sanctions, must satisfy a number of conditions.
Do Articles 2 and 273 of Council Directive 2006/112 of 28 November 206 on the common system of value added tax, 1 Article 50 of the Charter of Fundamental Rights of the European Union and Article 325 TFEU, in circumstances such as those in the main proceedings, preclude national legislation, such as that at issue in the main proceedings, which permits the adoption or implementation of sanctioning measures in relation to a taxpayer who is a legal person, in both administrative and criminal proceedings which are conducted in parallel in relation to that taxpayer, for the same specific acts of tax evasion, in a situation where the penalty applied in the administrative proceedings may also be classified as a criminal penalty, in accordance with the criteria identified by the Court of Justice of the European Union in its case-law, and to what extent are all of those events, taken together, excessive with regard to the taxpayer concerned?
In the light of the answer to Question 1, should EU law be interpreted as precluding national legislation, such as that at issue in the main proceedings, which permits a State, through its tax authorities, to disregard, in administrative proceedings, in respect of the same specific acts of tax evasion, the sum already paid by way of criminal damages which at the same time also constitutes the sum covering the tax loss, thereby making that amount unavailable for a certain period, in order subsequently also to establish in respect of that taxpayer, in the administrative proceedings, ancillary tax obligations in respect of the debt which has already been cleared?
Order (translated from French)
Articles 2 and 63 of Council Directive 2006/112 / EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that, once taxable transactions have taken place and that the value added tax relating thereto is payable, a payment, even provisional, aimed at honoring the corresponding tax claim cannot be considered to be undue and cannot generate interest for the benefit of the taxpayer who has paid it.