PPUH Stehcemp sp. j Florian Stefanek, Janina Stefanek, Jaroslaw Stefanek v Dyrektor Izby Skarbowej w Łodzi.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Date: 22 October 2015

JUDGMENT OF THE COURT (Fifth Chamber)

22 October 2015 ( *1 )

‛Reference for a preliminary ruling — Taxation — Value added tax — Sixth Directive — Right of deduction — Refusal — Sale by an entity regarded as non-existent’

In Case C‑277/14,

REQUEST for a preliminary ruling under Article 267 TFEU from the Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland), made by decision of 6 March 2014, received at the Court on 5 June 2014, in the proceedings

PPUH Stehcemp sp. J. Florian Stefanek, Janina Stefanek, Jarosław Stefanek

v

Dyrektor Izby Skarbowej w Łodzi,

THE COURT (Fifth Chamber),

composed of T. von Danwitz (Rapporteur), President of the Fourth Chamber, acting as President of the Fifth Chamber, D. Šváby, A. Rosas, E. Juhász and C. Vajda, Judges,

Advocate General: Y. Bot,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

— the Dyrektor Izby Skarbowej w Łodzi, by P. Szczerbiak and T. Szymański, acting as Agents,

— the Polish Government, by B. Majczyna, acting as Agent,

— the Austrian Government, by G. Eberhard, acting as Agent,

— the European Commission, by L. Lozano Palacios and M. Owsiany-Hornung, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of 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 (OJ 1977 L 145, p. 1), as amended by Council Directive 2002/38/EC of 7 May 2002 (OJ 2002 L 128, p. 41) (‘the Sixth Directive’).

2 The request has been made in proceedings between PPUH Stehcemp sp. j. Florian Stefanek, Janina Stefanek, Jarosław Stefanek (‘PPUH Stehcemp’) and the Dyrektor Izby Skarbowej w Łodzi (Director of the Tax Chamber in Łódź) concerning the latter’s refusal to allow the deduction of input value added tax (‘VAT’) paid by PPUH Stehcemp on transactions considered to be suspicious.

Legal context

EU law

3 According to Article 2(1) of the Sixth Directive, ‘the supply of goods or services effected for consideration within the territory of the country by a taxable person acting as such’ is to be subject to VAT.

4 Article 4(1) and (2) of that directive provides: ‘1. “Taxable person” shall mean any person who independently carries out in any place any economic activity specified in paragraph 2, whatever the purpose or results of that activity. 2. The economic activities referred to in paragraph 1 shall comprise all activities of producers, traders and persons supplying services including mining and agricultural activities and activities of the professions. The exploitation of tangible or intangible property for the purpose of obtaining income therefrom on a continuing basis shall also be considered an economic activity.’

5 According to Article 5(1) of the Sixth Directive, ‘supply of goods’ means the transfer of the right to dispose of tangible property as owner.

6 Article 10(1) and (2) of the Sixth Directive provides: (a) “Chargeable event” shall mean the occurrence by virtue of which the legal conditions necessary for tax to become chargeable are fulfilled. (b) The tax becomes “chargeable” when the tax authority becomes entitled under the law at a given moment to claim the tax from the person liable to pay, notwithstanding that the time of payment may be deferred. 2. The chargeable event shall occur and the tax shall become chargeable when the goods are delivered or the services are performed. …’

7 According to Article 17(1) of the Sixth Directive ‘[t]he right to deduct shall arise at the time when the deductible tax becomes chargeable’.

8 Article 17(2)(a) of the Sixth Directive, in the version resulting from Article 28f(1) thereof, provides: ‘In so far as the goods and services are used for the purposes of his taxable transactions, the taxable person shall be entitled to deduct from the tax which he is liable to pay: (a) [VAT] due or paid within the territory of the country in respect of goods or services supplied or to be supplied to him by another taxable person.’

9 Article 18(1)(a) of the Sixth Directive, in the version resulting from Article 28f(2) thereof, provides that, in order to exercise his right of deduction pursuant to Article 17(2)(a) of that directive, a taxable person must hold an invoice drawn up in accordance with Article 22(3) of that directive.

10

Article 22 of the Sixth Directive, which appears in Title XIII thereof, entitled ‘Obligations of persons liable for payment’, provides, in paragraphs 1(a), 3(b), 4(a) and 5 thereof, in the version resulting from Article 28h of the Sixth Directive: (a) Every taxable person shall state when his activity as a taxable person commences, changes or ceases. Member States shall, subject to conditions which they lay down, allow the taxable person to make such statements by electronic means, and may also require that electronic means are used. … … (b) Without prejudice to the specific arrangements laid down by this Directive, only the following details are required for VAT purposes on invoices issued under the first, second and third subparagraphs of point (a): — the date of issue; — a sequential number, based on one or more series, which uniquely identifies the invoice; — the VAT identification number referred to in paragraph 1(c) under which the taxable person supplied the goods or services; — where the customer is liable to pay tax on goods supplied or services rendered or has been supplied with goods as referred to in Article 28c(A), the VAT identification number as referred to in paragraph 1(c) under which the goods were supplied or the services rendered to him; — the full name and address of the taxable person and of his customer; — the quantity and nature of the goods supplied or the extent and nature of the services rendered; — the date on which the supply of goods or of services was made or completed or the date on which the payment on account referred to in the second subparagraph of point (a) was made, insofar as that date can be determined and differs from the date of issue of the invoice; — the taxable amount per rate or exemption, the unit price exclusive of tax and any discounts or rebates if they are not included in the unit price; — the VAT rate applied; — the VAT amount payable, except where a specific arrangement is applied for which this Directive excludes such a detail; … (a) Every taxable person shall submit a return by a deadline to be determined by Member States. That deadline may not be more than two months later than the end of each tax period. The tax period shall be fixed by each Member State at one month, two months or a quarter. Member States may, however, set different periods provided that they do not exceed one year. Member States shall, subject to conditions which they lay down, allow the taxable person to make such returns by electronic means, and may also require that electronic means are used. … 5. Every taxable person shall pay the net amount of the value added tax when submitting the regular return. Member States may, however, set a different date for the payment of that amount or may demand an interim payment.’

Polish law

11 Article 5(1)(1) of the Law on the tax on goods and services (Ustawa o podatku od towarów i usług) of 11 March 2004 (Dz. U. No 54, item 535; ‘the VAT Law’) provides that the supply of goods or services for consideration within the national territory is to be subject to tax on goods and services.

12 According to Article 7(1) of the VAT Law, ‘supply of goods’, within the meaning of Article 5(1)(1) thereof, means the transfer of the right to dispose of those goods as owner.

13 Article 15(1) and (2) of the VAT Law provides: ‘1. “Taxable persons” shall mean legal persons, organisational entities without legal personality and natural persons who, independently, carry out one of the economic activities referred to in paragraph 2, whatever the purpose or results of that activity. 2. Any activity of producers, traders or persons supplying services, including mining and agricultural activities and activities of the professions, shall be regarded as an economic activity, even where the activity concerned was carried out only once in circumstances indicating an intention to perform that activity repeatedly. The exploitation of tangible or intangible property for the purpose of obtaining income therefrom on a continuing basis shall also be regarded as an economic activity.’

14 According to Article 19(1) of the VAT Law, the liability to pay the tax arises when the goods or services are supplied.

15 Under Article 86(1) of the VAT Law, in so far as the goods and services are used to conduct taxable transactions, a taxable person within the meaning of Article 15 of that Law has the right to deduct the amount of input tax from the amount of tax which he owes. Article 86(2) provides that the amount of input tax is equal to the total amount of VAT specified in the invoices received by the taxable person for the...