Theft of goods placed under customs warehousing arrangements constitutes an unlawful removal of those goods and gives rise to a customs debt on importation. Article 206 of the Community Customs Code applies only to situations where a customs debt is liable to be incurred pursuant to Articles 202 and 204(1)(a) of that regulation. The theft of goods under customs warehousing arrangements causes value added tax to become chargeable.
C-550/11 (PIGI) – Revision of the deducted input tax is possible in the event of theft
The case involves PIGI, a Bulgarian trader who had a shortfall in goods due to theft. The revenue office proposed an adjustment of the VAT owing for the month of January 2007, which was confirmed by a tax assessment. PIGI argued that the shortfall was due to force majeure and objected to the decision, but it was dismissed by the Direktor. PIGI brought an action against the rejection decision, arguing that the provisions on adjustment of input VAT should not apply in cases of theft. The referring court asked the CJEU whether national tax provisions, such as those contained in Articles 79 and 80 of the Law on value added tax, were permissible under Article 185(2) of Council Directive 2006/112/EC. The CJEU held that Article 185(2) did not preclude such provisions.
National tax provisions are permitted which, where it is established that goods subject to VAT are missing, require adjustment of the deduction of input VAT made on the purchase of those goods if the taxable person is the victim of the theft of those goods and the perpetrator has not been identified.
Theft of goods does not constitute a ‘supply of goods for consideration’ and therefore cannot be subject to VAT. The fact that it concerns excise goods is irrelevant for that purpose.
The authorization granted to a Member State on the basis of Article 27(5) of the Sixth Directive to introduce measures to facilitate the control of the levying of VAT does not empower that State to carry out acts other than those referred to in Article 2 of the Directive to this tax. That authorization cannot therefore provide a legal basis for national legislation subjecting the theft of goods from a tax warehouse to VAT.
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