VATupdate

Flashback on ECJ Cases – C-55/16 (Evo Bus) – 8th VAT Directive Refund does not require proof of payment

On June 30, 2016, the ECJ issued its order in the case C-55/16 (Evo Bus).

Context: Reference for a preliminary ruling – Article 99 of the Rules of Procedure of the Court – Common system of value added tax – Right to reimbursement – Eighth Directive 79/1072 / EEC – Conditions for obtaining reimbursement – Imposition of conditions other than those referred to in Articles 3 and 4 – Obligation to provide proof of payment of the tax – Eligibility


Article in the EU VAT Directive

Article 1, 2, 3, 4 and 6 of the Eight Directive


Facts

  • By contracts dated 23 December 2005 and 10 September 2007, having for object the delivery of buses to the Regia Autonomă de Transport Bucureşti (RATB), Evo Bus undertook to ensure the repair, maintenance and overhaul of buses books. With the agreement of the Regia Autonomă de Transport Bucureşti (RATB), Evo Bus entered into a service contract on December 15, 2007 with Evo Bus România under the terms of which the latter took over these commitments.
  • Under these contracts, Evo Bus România invoiced Evo Bus, in particular, for the cost of labor, spare parts and consumables purchased within the framework of the repair, maintenance and overhaul of said buses.
  • On December 15, 2009, Evo Bus lodged with the tax authority a request for reimbursement of the VAT invoiced to it by Evo Bus România.
  • As regards, in particular, an amount of VAT amounting to 662,472 Romanian lei (RON) (approximately 147,000 euros), this request was refused on the grounds that Evo Bus had not provided proof of the payment of this tax.
  • The Curtea de Apel Bucureşti (Bucharest Court of Appeal, Romania) dismissed the appeal brought by Evo Bus against that decision. It considered that the fact that the Eighth Directive does not expressly provide for the obligation to prove payment of VAT does not imply that the latter precludes the existence of such an obligation. It also held that it had not been demonstrated that the said decision had infringed the principle of fiscal neutrality.
  • Having brought an appeal against the judgment of the Curtea de Apel Bucureşti (Bucharest Court of Appeal), the referring court has doubts as to the compliance with the Eighth Directive of the obligation to prove payment of the VAT for the purposes of obtaining reimbursement thereof, an obligation which results from the expression “tax paid”, appearing in Article 147 ter, paragraph 1, sub a) of the Tax Code.

Questions

Are the Eighth Directive (79/1072/EEC) and the principle of fiscal neutrality to be interpreted as precluding/having precluded the legislation of a Member State which regulates/regulated, in the light of the principle that there should be certainty in tax matters, the conditions for eligibility for reimbursement of value added tax, such as, in the present case, the condition requiring proof of payment of the tax by suppliers?


AG Opinion

None


Decision

Eighth Council Directive 79/1072/EEC of 6 December 1979 on the harmonisation of the laws of the Member States relating to turnover taxes — Arrangements for the refund of value added tax to taxable persons not established in the territory of the country, precludes legislation of a Member State under which, in order to exercise their right to reimbursement of value added tax, taxable persons are subject to a general obligation to provide proof of payment of that tax.


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