On July 15, 2015, the ECJ issued its Order in the case C-82/14 (Nuova Invincibile).
Context: Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court — Sixth Directive 77/388/EEC
Article in the EU VAT Directive
Article 2 and 22 of the Sixth VAt Directive (Article 252 of the EU VAT Directive 2006/112/EC)
Article 22 of the Sixth Directive provides:
4. All taxable persons must lodge a declaration within a time limit to be fixed by the Member States. […]
5. All taxable persons must pay the net amount of [VAT] when filing the periodic declaration. However, Member States may set another deadline for the payment of this amount or levy installments.
8. […] Member States are free to lay down other obligations which they deem necessary to ensure the correct collection of the tax and to prevent fraud.
- Nuova Invincibile, whose registered office is located in Acireale, a municipality affected by the earthquake of December 13 and 16, 1990, submitted on March 27, 2008 to the Agenzia delle Entrate a request for reimbursement of the amounts paid as taxes and VAT for the years 1990 to 1992, invoking Article 9(17) of Law No 289/2002. She considered that this provision gave her the right to reimbursement of 90% of the amounts already paid.
- Faced with the silence of the Agenzia delle Entrate, Nuova Invincibile brought an action seeking reimbursement of the amounts paid before the Commissione tributaria provinciale di Catania (Provincial Tax Commission of Catania), which dismissed it.
- Nuova Invincibile having lodged an appeal, the Commissione tributaria regionale della Sicilia (regional tax commission of Sicily), reversed the contested judgment and upheld the initial request, relying on the case law of the Corte suprema di cassazione according to which the methods of payment of the taxes provided for in article 9, paragraph 17, of the law n° 289/2002 also apply to taxable persons who have already paid the taxes in question, entitling them to reimbursement of the excess paid. The Commissione tributaria regionale della Sicilia therefore condemned the Agenzia delle Entrate to the restitution of the sums paid by Nuova Invincibile.
- The Agenzia delle Entrate appealed in cassation against the judgment delivered by that court, arguing that the plea alleging that Article 9(17) of Law No 289/2002 is not intended to apply when the taxpayer has already paid the sums due in respect of the taxes concerned on the date of entry into force of this provision cannot succeed.
- Nuova Invincibile submits, as regards the applicability of the principle established by the Court in the judgment in Commission v Italy (C‑132/06, EU:C:2008:412), which the referring court intends to apply, that this does not concern Article 9(17) of Law No 289/2002. That provision does not constitute an amnesty comparable to the so-called ‘tomb’ amnesty, criticized in that judgment, but rather State aid compatible with EU law insofar as it is intended to remedy the damage caused by a natural disaster.
The principles set out in the judgment in Commission v Italy (C‑132/06, EU:C:2008:412), according to which ‘[by] providing in Articles 8 and 9 of Law [No 289/2002] the general and undifferentiated waiver of the verification of taxable transactions carried out during a series of tax periods, the Italian Republic has failed to fulfill its obligations under Articles 2 and 22 of the [Sixth Directive], as well as of Article 10 EC’, do they preclude a national provision, such as it derives from Article 9(17) of Law No 289/2002 which, according to the interpretation provided by the Corte suprema di cassazione, allows taxpayers to obtain reimbursement of the amounts paid as VAT during the three years 1990 to 1992, taking into account the earthquake which struck the provinces of Catania,of Ragusa and Siracusa.
Articles 2 and 22 of Sixth Council Directive 77/388 / EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes – Common system of value added tax : uniform base, must be interpreted in the sense that they oppose a national provision such as article 9, paragraph 17, of law n ° 289, of December 27, 2002, laying down provisions for the formation of the annual budget and multiannual of the State (finance law for 2003), which provides, in view of an earthquake that struck the provinces of Catania, Ragusa and Siracusa, for the benefit of those affected by it, a reduction of 90% of the value added tax normally due for the years 1990 to 1992, in particular by giving the right to a refund, in this proportion,amounts already paid for value added tax, insofar as this provision does not meet the requirements of the principle of fiscal neutrality, and does not ensure the full collection of the value added tax due on the Italian territory.
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