On October 13, 2022, the ECJ issued the judgment in the case C-1/21 (Direktor na Direktsia „Obzhalvane i danachno-osiguritelna praktika“).
Context: Request for a preliminary ruling – Tax law – Value added tax (VAT) – Directive 2006/112/EC – National legislation which provides for the joint and several liability of a company’s executive board where the latter, acting in bad faith, deprived the company of assets, with the result that it could not pay its tax debts (including VAT debts) – Liability also for the interest payable by the company – Scope of EU law – Principle of proportionality
Article in the EU VAT Directive
Article 273 of the EU VAT Directive 2006/112/EU
Member States may impose other obligations which they deem necessary to ensure the correct collection of VAT and to prevent evasion, subject to the requirement of equal treatment as between domestic transactions and transactions carried out between Member States by taxable persons and provided that such obligations do not, in trade between Member States, give rise to formalities connected with the crossing of frontiers. The option under the first paragraph may not be relied upon in order to impose additional invoicing obligations over and above those laid down in Chapter 3.
Facts
- The subject matter of the proceedings is an action brought by MC, from Veliko Tarnovo, challenging the legality of a tax assessment notice issued by the
Teritorialna direktsia na Natsionalna agentsia za prihodite (Regional Directorate of the National Revenue Agency; ‘the NAP’) in Veliko Tarnovo, corrected by way of a notice of correction of a tax assessment notice. - In the part contested by the action before the referring court, the corrected tax assessment notice was confirmed by decision of the Direktor na Direktsia ‘Obzhalvane i danachnoosiguritelna praktika’ – Veliko Tarnovo (Director of the ‘Appeals and Tax and Social Security Practice’ Directorate of Veliko Tarnovo).
- The corrected tax assessment notice established that the applicant owed the State a debt in the total amount of 45 008.25 leva (BGN) for the December 2014 tax period, of which 12 837.50 leva (BGN) is accrued interest. That amount is part of the unpaid tax debts of another taxable entity, namely the company ZZ AD, of which the applicant was an executive director during the period for which the aforementioned amount is owed.
- After opening the main proceedings, the referring court finds that an interpretation of provisions of EU law is required for the correct resolution of the dispute. It therefore submits a request for a preliminary ruling to the Court of Justice of the European Union under the third paragraph of Article 267 TFEU.
Questions
1. Is Article 9 of the Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on the protection of the European Communities’ financial interests, read in conjunction with Article 273 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, to be interpreted as meaning that it does not preclude, in the harmonised field of value added tax, a national legal instrument such as that provided for in Article 19(2) of the DOPK, the application of which has the effect of triggering post factum the joint and several liability of a non-taxable natural person who is not liable for payment of VAT but whose conduct in bad faith led to non-payment of VAT by the taxable legal person which is liable for that payment?
2. Do the interpretation of those provisions and the application of the principle of proportionality preclude the national legal instrument provided for in Article 19(2) of the DOPK also in respect of interest on VAT not paid in due time by the taxable person liable for that payment?
3. Is the national legal instrument provided for in Article 19(2) of the DOPK contrary to the principle of proportionality in a case where the late payment of VAT, which led to interest being charged on the VAT debt, is attributable not to the conduct of the non-taxable natural person, but to the conduct of another person or to the manifestation of objective circumstances?
AG Opinion
The general joint and several liability of a company’s executive body (non-taxable person within the meaning of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (‘the VAT Directive’) for conduct causing harm to the company (in casu: granting a salary at an unreasonable level), which causes the non-payment of tax debts owed by the company, is not the subject of the VAT Directive and does not come within the scope of EU law. The Court therefore does not have jurisdiction to answer the questions asked.
Decision (unofficial translation)
1) Article 273 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax and the principle of proportionality
shall be construed to mean that:
allow a national legal framework that provides for an instrument of joint and several liability for the obligations of legal entities for value added tax (VAT) in the following circumstances:
– the jointly liable person is the manager of the legal entity or a member of its management body,
– the jointly and severally liable person has in bad faith made payments from the property of the legal entity, which can be characterized as a hidden distribution of profit or dividend, or has alienated property of the legal entity free of charge or at prices significantly lower than market prices,
– the actions performed in bad faith have resulted in the inability of the legal entity to pay all or part of the VAT for which the person is the payer,
– joint and several liability is limited to the amount by which the property of the legal entity has decreased due to the actions performed in bad faith, and
– this joint and several liability is realized only subsidiarily — when it turns out to be impossible to collect the due amounts of VAT from the legal entity.
2) Article 273 of Directive 2006/112 and the principle of proportionality
shall be construed to mean that:
admit a national legal framework that provides for an instrument of joint and several liability as described in point 1 of the operative part of this decision, which also covers the interest for arrears that the legal entity owes due to the failure to pay the value added tax within the mandatory terms established by the provisions of this directive , as a result of the actions performed in bad faith by the jointly and severally liable person.
Source
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