On October 21, 2015, the ECJ issue an Order in the case C-120/15 (Kovozber).
Context: Reference for a preliminary ruling – Article 99 of the Rules of Procedure of the Court – Value added tax (VAT) – Directive 2006/112 / EC – Article 183 – Reimbursement of excess VAT – National legislation not providing for the calculation of interest delays relating to the reimbursement of excess VAT only from the expiration of a period of ten days after the closure of a tax audit procedure
Article in the EU VAT Directive
Article 183 in the EU VAT Directive 2006/112/EC
Article 183 (Right to deduct VAT – Rules Governing Exercise of the Right of Deduction)
Where, for a given tax period, the amount of deductions exceeds the amount of VAT due, the Member States may, in accordance with conditions which they shall determine, either make a refund or carry the excess forward to the following period. However, Member States may refuse to refund or carry forward if the amount of the excess is insignificant.
- It is apparent from the order for reference and from the response to the request for information, received by the Court on 16 June 2015, that Kovozber requested reimbursement of the excess VAT for the month of July 2007 by its declaration tax filed on August 25, 2007.
- A tax audit procedure aimed at establishing the merits of Kovozber’s right to reimbursement of excess VAT was initiated by the tax authorities on October 14, 2007 and ended on March 7, 2008 with the adoption of a decision recognizing such a right. This excess was reimbursed to him on March 13, 2008.
- Considering that the tax administration should have reimbursed the excess as from September 25, 2007 and not after the expiration of a period of ten days from the date of closure of the tax audit procedure, Kovozber filed a claim requesting payment of default interest from 31 th day after the expiry of the deadline of the VAT return for the period until the date of repayment of the surplus.
- Since its complaint was dismissed by decision of the defendant in the main proceedings of 27 January 2012, Kovozber brought proceedings before the referring court.
- According to that court, national law does not provide for the grant of default interest in the event of late reimbursement of excess VAT and there are no rules either defining the circumstances in which reimbursement of VAT surplus is to be considered late. It further explains that the tax administration puts an end to the tax audit within six months of its opening and can extend this period by a maximum of six months or, in the case of foreign taxable persons, by a maximum of twelve months.
(1) Must the first paragraph of Article 183 of the VAT Directive be interpreted as precluding national legislation which, in order to define the conditions for the reimbursement of excess VAT, makes the grant of default interest (relating to the late refund of VAT) at the end of a period of ten days from the end of the tax audit procedure aimed at establishing the merits of the right to refund of the tax excess VAT?
2) If the answer to the first question is in the affirmative, is the national court bound, by means of a discretionary assessment based on legal reasoning by analogy, to define an appropriate legal regime in the event that national law does not govern not the default interest at the end of the ten-day period after the end of the tax audit procedure?
The first paragraph of Article 183 of Council Directive 2006/112 / EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that it precludes legislation national law, such as that at issue in the main proceedings, which provides for the calculation of default interest relating to the reimbursement of excess value added tax only from the expiry of a period of ten days after the closure of the tax audit procedure.
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