On July 9, 2009, the ECJ issued its Order in the case C-483/08 (Régie communale autonome du stade Luc Varenne).
Context: Article 104(3), first subparagraph, of the Rules of Procedure — Sixth VAT Directive — Article 10(1) and (2) — Recovery of the tax wrongly deducted — Starting point of the limitation period
Article in the EU VAT Directive
Articles 10(1) and 10(2) of the Sixth VAT Directive (Articles 63, 64, 65 and 66 of the EU VAT Directive 2006/112/EC).
Article 63 (Chargeable event)
The chargeable event shall occur and VAT shall become chargeable when the goods or the services are supplied.
1. Where it gives rise to successive statements of account or successive payments, the supply of goods, other than that consisting in the hire of goods for a certain period or the sale of goods on deferred terms, as referred to in point (b) of Article 14(2), or the supply of services shall be regarded as being completed on expiry of the periods to which such statements of account or payments relate.
2. Continuous supplies of goods over a period of more than one calendar month which are dispatched or transported to a Member State other than that in which the dispatch or transport of those goods begins and which are supplied VAT-exempt or which are transferred VAT-exempt to another Member State by a taxable person for the purposes of his business, in accordance with the conditions laid down in Article 138, shall be regarded as being completed on expiry of each calendar month until such time as the supply comes to an end.
Supplies of services for which VAT is payable by the customer pursuant to Article 196, which are supplied continuously over a period of more than one year and which do not give rise to statements of account or payments during that period, shall be regarded as being completed on expiry of each calendar year until such time as the supply of services comes to an end.
Member States may provide that, in certain cases other than those referred to in the first and second subparagraphs, the continuous supply of goods or services over a period of time is to be regarded as being completed at least at intervals of one year.
Where a payment is to be made on account before the goods or services are supplied, VAT shall become chargeable on receipt of the payment and on the amount received.
By way of derogation from Articles 63, 64 and 65, Member States may provide that VAT is to become chargeable, in respect of certain transactions or certain categories of taxable person at one of the following times:
(a) no later than the time the invoice is issued;
(b) no later than the time the payment is received;
(c) where an invoice is not issued, or is issued late, within a specified time no later than on expiry of the time-limit for issue of invoices imposed by Member States pursuant to the second paragraph of Article 222 or where no such time-limit has been imposed by the Member State, within a specified period from the date of the chargeable event.
The derogation provided for in the first paragraph shall not, however, apply to supplies of services in respect of which VAT is payable by the customer pursuant to Article 196 and to supplies or transfers of goods referred to in Article 67.
- By deed of 6 January 2003, the city of Tournai constituted, on a plot of land which it owned, a surface right in favor of the temporary association Bouygues Belgium and GTB Bouyer, in charge of building a football stadium. This right was to end on the date of the transfer of ownership of the stadium to be erected.
- On September 23, 2003, the said association transferred and invoiced the RCA for the buildings erected on the said land and, on September 25, 2003, the city of Tournai transferred, by authentic deed and for a period of 50 years, the surface right on the ground in question to the CAR.
- During a tax audit carried out on 14 May 2004 at the head office of the CAR, the Belgian tax authorities considered that the transaction concerned by the invoice of 23 September 2003 had been wrongly placed under a specific VAT regime, applicable to the execution of building works. According to her, the transaction in question was a supply of goods and should have appeared in the RCA’s VAT return for the third quarter of 2003.
- Following that inspection, the RCA submitted, on 24 January 2005, an amended VAT return relating to the fourth quarter of 2004, mentioning the amount of VAT due on the transaction in question and deducting it in full.
- Considering, following the said tax audit, that the RCA was a mixed taxable person with only limited rights to deduct VAT, the tax authorities rejected the full deduction of VAT and awarded, on 10 January 2007 , a constraint, made enforceable on January 11, 2007 and notified to the RCA on January 12, 2007, relating to the amount of VAT unduly deducted as well as fines and interest.
- The RCA opposes, before the referring court, the recovery of the tax wrongly deducted, invoking extinctive prescription. According to it, the tax on the transaction concerned having become payable and deductible on September 23, 2003, the limitation period for the recovery action was acquired on December 31, 2006, in accordance with Article 81 bis of the VAT Code.
- The Belgian State replies that the tax debt only arose and became due on 24 January 2005, pursuant to the filing of the amended VAT return, by which the RCA exercised its right to deduct. It would be this erroneous claim of the right to deduct which would have caused the limitation period for recovery action to run under Article 81 of the VAT Code. Consequently, the constraint would have been awarded and notified before the expiry of the prescription.
- It is apparent from the order for reference that, in accordance with the VAT Code, the very submission of the periodic declaration gives rise to a specific action for payment of the tax, interest and administrative fines, the payment of which is apparent from that declaration and which lapses within the three-year period provided for in Article 81 bis, paragraph 1, first subparagraph, of the VAT Code.
Does Article 10 of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment 1, preclude an interpretation of national statutory provisions and an administrative practice which consist in fixing the starting point for an action for recovery of VAT, and therefore the date from which the limitation period for that action is to be calculated, as the date on which the VAT return is lodged in which the taxable person claims a right to deduct?
Article 10 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, as amended by Council Directive 2002/38 / EC of 7 May 2002, must be interpreted as not opposing national legislation and administrative practice establishing the starting point the limitation period for the action for recovery of value added tax unduly deducted on the day of filing of the declaration by which the taxable person claimed for the first time his right to deduct.
A national legislation and national administrative practice is allowed whereby thh starting point of the period of limitation of the claim for the payment of the unduly deducted VAT is taken, the day of filing the return in which the taxpayer first asserted his right to deduct.
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