VATupdate

ECJ C-669/21 Gencoal S.A. vs PT (Questions): Deadline for cross border VAT refund by taxable persons in other EU member states

The applicant, Gencoal, S.A., brought proceedings against Conceito Norte –
Consultoria de Gestão, Lda. and BT, an accountancy firm and a certified
accountant, respectively, seeking an order that they be held jointly and severally
liable for the payment of compensation in the amount of EUR 110 665.47,
together with accrued interest from the date on which they were summoned, in
relation to the late filing of the application for a refund of Community value added
tax (‘VAT’) for the year 2017; that application was filed with the Spanish Tax
Authority in December 2018, whereas the time limit expired on 30 September
2018.
In its defence, the defendant put forward the argument that, by providing that the
refund application is to be submitted in the Member State at the latest on
30 September of the calendar year following the refund [period], Article 15(1) of
Council Directive 2008/9/EC of 12 February 2008 and Article 8(5) of Decreto-Lei
[Decree-Law] No 186/2009 of 12 August conflict with the European Union
provisions on VAT laid down in Council Directive 2006/112/EC of 28 November
2006, which replaced the Sixth Directive, in that they lay down a more limited
scheme (nine months) for taxable persons liable for VAT who are not established
in the Member State of refund than for taxable persons who are established in that
Member State (four years).
The following is clear from the evidence submitted:
1. In the course of the industrial preservation of fisheries and aquaculture
products in oil and other sauces, for use in the manufacture of preserves, the
applicant purchases fish and engages storage services from undertakings
established in Spain.
2. In the period 1 January to 31 December 2017, the applicant purchased goods
and engaged services on Spanish territory with a total value of EUR 1 103 067.25
and it paid EUR 110 665.47 in respect of VAT.
3. The application for a refund of the VAT referred to above was filed on
31 December 2018 using the website of the Portuguese Tax Authority, which
forwarded the application to the Spanish Tax Agency.
4. The Spanish Tax Agency rejected the refund application and stated by way
of reasoning that the time limit for filing a refund application starts to run on the
day following the last day of each calendar quarter or each calendar year and ends
on 30 September of the year following the calendar year in which the tax
concerned was levied, as stipulated by Article 31(4) of Royal Decree 1624/1992
approving the VAT Regulations (Real Decreto 1624/1992 por el que se aprueba el
Reglamento del IVA) of 29 December 1992.
The question which is referred in connection with the examination of this dispute
is whether Article 31(1) 1
and (4) 2 of Royal Decree 1624/1992 of 29 December
1
‘Traders or professional practitioners not established within the territory of application of the tax
but established within the Community … may apply for a refund of any [VAT] amounts as
referred to in Article 119 of the Law on [VAT] …’
1992 approving the Spanish VAT Regulations and Article 15(1) of Council
Directive 2008/9/EC of 12 February 2008, by providing, in the case of the former,
that the period for the filing of an application for a VAT refund by traders or
professional practitioners not established in the territory of application of the tax
but established within the Community [European Union] starts to run [on the day] following the last day of each calendar quarter or each calendar year and ends on
30 September of the year following the calendar year in which the tax concerned
was paid,
3
and, in the case of the latter, that the refund application must be
submitted to the Member State of establishment not later than 30 September of the
calendar year following the refund period, infringe the principle of fiscal
neutrality (with consequences for neutrality in the context of competition and
the principle of equal treatment from the point of view of the prohibition of
discrimination) which flows from the common system of VAT as derived from
recitals 4, 5 and 7 and Articles 167, 170, 171 and 178 of Council Directive
2006/112/EC of 28 November 2006, as amended by Council Directive 2008/8/EC
of 12 February 2008, and the fundamental right enshrined in Article 41(1) of the
Charter of Fundamental Rights of the European Union.
The question is of particular importance in so far as Article 31(4) of Royal Decree
1624/1992 enables the adoption of discriminatory treatment of traders and
professional practitioners not established in Spanish territory as compared with
traders and professional practitioners who are established in Spanish territory,
since the latter benefit from the scheme laid down in Articles 99(3) 4
and 100 5 of
Law 37/1992 of 28 December 1992, which provide that the right of deduction may
be exercised by taxable persons liable for VAT in the return relating to the
assessment period in which the person completing the return incurred the
deductible VAT or in returns relating to subsequent periods, provided that four
years have not elapsed from the date on which that right arose; the right will
expire if it is not exercised within that period.
Therefore, in accordance with Article 267 of the Treaty on the Functioning of the
European Union, in the light of the question raised and since that question requires
a preliminary ruling for the purpose of adjudicating on this dispute, the court:

2 ‘The period for filing the refund application shall start to run on the day following the last day
of each calendar quarter or each calendar year and shall end on 30 September of the year
following the calendar year in which the tax concerned was levied.’
3 Similarly, also in the context of refunds to taxable persons not established in national territory,
Article 8(5) of Decreto-Lei No 186/2009 of 12 August provides that ‘the refund application
must be submitted to the Member State of establishment not later than 30 September of the
calendar year following the calendar year in which the tax fell due.’
4 ‘The right of deduction may be exercised only in the tax return relating to the assessment period
in which the person completing the return incurred the deductible VAT or in returns relating to
subsequent periods provided that four years have not elapsed from the date on which that right
arose.’
5 The right of deduction expires if the holder of that right has not exercised the right within the
time limits and in the amounts set out in Article 99 of this Law.
a) Requests the Court of Justice of the European Union to answer the question
referred.
b) […] [procedural aspects of national law] Decides to stay the proceedings
until such time as the Court of Justice gives a ruling on the matter.
[…] [procedural aspects of national law] […] [procedural aspects of national law] ***
[…] [explanation relating to the inclusion of untranslated provisions of Spanish
national law] […] [procedural aspects of national law] […] Póvoa de Varzim, 21 October 2021
[…] [procedural aspects of national law] The judge
[…] [name]

Source: Curia

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