Supreme Administrative Court composed of: Chairman – Judge of the Supreme Administrative Court Zbigniew Łoboda, Judge of the Supreme Administrative Court Janusz Zubrzycki (rapporteur), Judge of the Provincial Administrative Court del. Marzena Łozowska, Record Keeper Katarzyna Wojnarska, after examining on November 23, 2021 at a hearing in the Financial Chamber, a cassation appeal of the Director of the Tax Administration Chamber in Warsaw against the judgment of the Provincial Administrative Court in Warsaw of May 29, 2019, file ref. no. III SA / Wa 2951/18 on a complaint from W. sp. z oo with its seat in S. against the decision of the Director of the Tax Administration Chamber in Warsaw of October 11, 2018 No. […] regarding tax on goods and services for October 2015 decides:
1) pursuant to art. 267 of the Treaty on the Functioning of the European Union (consolidated version of 2012 – EU Official Journal of October 26, 2012, No. C 326 p. 1 et seq. ) refer the following question for a preliminary ruling to the Court of Justice of the European Union: Do the provisions of Art. 167, art. 168 lit. a), art. 178 (a) a) and art. 273 of Council Directive 2006/112 / EC of 28 November 2006 on the common system of value added tax (Official Journal of the EU, L series of 2006, No. 347/1, as amended) and the principles of neutrality and proportionality should be interpreted as precluding a national rule such as Art. 88 sec. 3a point 4 lit. c) the Act of March 11, 2004 on tax on goods and services (Journal of Laws of 2011, No. 177, item 1054, as amended), which deprives the taxpayer of the right to deduct VAT for the acquisition of the right (thing) recognized made for appearances within the meaning of the provisions of domestic civil law, regardless of whether the intended effect of the transaction was a tax advantage, the granting of which would be contrary to one or more of the objectives of the directive and was it the primary purpose of the agreed contractual solution?
2) pursuant to art. 124 § 1 point 5 of the Act of 30 August 2002 – Law on proceedings before administrative courts (Journal of Laws of 2019, item 2325, as amended), suspend the proceedings in the case until the above-mentioned question is resolved. Marzena Łozowska Zbigniew Łoboda Janusz Zubrzycki
Source: gov.pl
