VAT deduction of shell companies: reference for a preliminary ruling to the EU Court of Justice

With the interlocutory ordinance no. 16091, on 19.5.2022 , the Court of Cassation asked the Court of Justice of the European Union to rule on the following issues:

European court of justiceif art. 9, par. 1, Directive 2006/112 / EC can be interpreted in the sense of denying the status of taxable person and, consequently, the right to deduct or refund VAT. of compensation paid to the subject who carries out active operations relevant for VAT purposes to an extent deemed inconsistent – as excessively low – with respect to what can reasonably be expected from the assets available to him for three consecutive years according to criteria predetermined by the law and is not able to demonstrate, to justify this circumstance, the existence of objective impediments;

if the answer to the first question is negative, if art. 167 of Directive 2006/112 / EC and the general principles of VAT neutrality and proportionality of the limitation of the right to deduct VAT prevent a national regulation which, with art. 30, paragraph 4, of Law no. 724 of 1994, denies the right to deduct VAT for recourse paid on purchases, refund of the same or use of the same in a subsequent tax period to the taxable person who, for three consecutive tax periods, carries out active operations relevant for VAT purposes to an extent deemed inconsistent – as excessively low – with respect to what can reasonably be expected from the assets at its disposal for three consecutive years and is unable to demonstrate, to justify this circumstance,

in the event of a negative answer to the second question, if the Union principles of legal certainty and the protection of legitimate expectations preclude a national discipline which, with art. 30, paragraph 4, of Law no. 724 of 1994 denies the right to deduct VAT in the terms referred to in point 2).

Source: commercialistatelematico.com

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