Marian Macikowski v Dyrektor Izby Skarbowej w Gdańsku.

• Jurisdiction: European Union
• Celex Number: 62013CJ0499
• ECLI: ECLI:EU:C:2015:201
• Date: 26 March 2015
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-499/13

JUDGMENT OF THE COURT (First Chamber)

26 March 2015 ( *1 )

‛Reference for a preliminary ruling — Common system of value added tax — Principles of proportionality and fiscal neutrality — Taxation of a supply of immovable property in a procedure for compulsory sale by auction — National legislation requiring the court enforcement officer executing such a sale to calculate and pay VAT on the transaction — Payment of the purchase price to the competent court and need for the VAT to be paid to be transferred by that court to the court enforcement officer — Liability for damages and criminal liability of the court enforcement officer for non-payment of VAT — Difference between the general statutory time-limit for the payment of VAT by a taxable person and the time-limit imposed on the court enforcement officer — Impossibility of deducting the input VAT paid’

In Case C‑499/13,

REQUEST for a preliminary ruling under Article 267 TFEU from the Naczelny Sąd Administracyjny (Poland), made by decision of 21 February 2013, received at the Court on 16 September 2013, in the proceedings

Marian Macikowski

v

Dyrektor Izby Skarbowej w Gdańsku,

THE COURT (First Chamber),

composed of A. Tizzano, President of the Chamber, S. Rodin, A. Borg Barthet (Rapporteur), E. Levits and F. Biltgen, Judges,

Advocate General: J. Kokott,

Registrar: K. Malacek, Administrator,

having regard to the written procedure and further to the hearing on 4 September 2014,

after considering the observations submitted on behalf of:

— Mr Macikowski, by M. Kalinowski, radca prawny,

— the Dyrektor Izby Skarbowej w Gdańsku, by T. Tratkiewicz and J. Kaute, acting as Agents,

— the Polish Government, by B. Majczyna and A. Gawłowska, acting as Agents,

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

after hearing the Opinion of the Advocate General at the sitting on 6 November 2014,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of the principles of proportionality and fiscal neutrality and of Articles 9, 193, 199, 206, 250 and 252 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1; ‘the VAT Directive’).

2 The request has been made in proceedings between Mr Macikowski, a court enforcement officer, and the Dyrektor Izby Skarbowej w Gdańsku (Director of the Tax Chamber, Gdańsk) concerning the failure to pay in due time the value added tax (VAT) payable in respect of the sale of immovable property effected through enforcement.

Legal context

EU law

3 Article 9(1) of the VAT Directive provides: ‘“Taxable person” shall mean any person who, independently, carries out in any place any economic activity, whatever the purpose or results of that activity. Any activity of producers, traders or persons supplying services, including mining and agricultural activities and activities of the professions, shall be regarded as “economic activity”. The exploitation of tangible or intangible property for the purposes of obtaining income therefrom on a continuing basis shall in particular be regarded as an economic activity.’

4 Article 193 of that directive is worded as follows: ‘VAT shall be payable by any taxable person carrying out a taxable supply of goods or services, except where it is payable by another person in the cases referred to in Articles 194 to 199 and Article 202.’

5 Article 199(1)(g) of the directive states: ‘Member States may provide that the person liable for payment of VAT is the taxable person to whom any of the following supplies are made: … (g) the supply of immovable property sold by a judgment debtor in a compulsory sale procedure.’

6 Article 204 of the directive provides: ‘1. Where, pursuant to Articles 193 to 197 and Articles 199 and 200, the person liable for payment of VAT is a taxable person who is not established in the Member State in which the VAT is due, Member States may allow that person to appoint a tax representative as the person liable for payment of the VAT. Furthermore, where the taxable transaction is carried out by a taxable person who is not established in the Member State in which the VAT is due and no legal instrument exists, with the country in which that taxable person is established or has his seat, relating to mutual assistance similar in scope to that provided for in Directive 76/308/EEC … and Regulation (EC) No 1798/2003 …, Member States may take measures to provide that the person liable for payment of VAT is to be a tax representative appointed by the non-established taxable person. However, Member States may not apply the option referred to in the second subparagraph to a non-established taxable person, within the meaning of point (1) of Article 358, who has opted for the special scheme for electronically supplied services. 2. The option under the first subparagraph of paragraph 1 shall be subject to the conditions and procedures laid down by each Member State.’

7 Article 205 of the directive provides: ‘In the situations referred to in Articles 193 to 200 and Articles 202, 203 and 204, Member States may provide that a person other than the person liable for payment of VAT is to be held jointly and severally liable for payment of VAT.’

8 Article 206 of the directive states: ‘Any taxable person liable for payment of VAT must pay the net amount of the VAT when submitting the VAT return provided for in Article 250. Member States may, however, set a different date for payment of that amount or may require interim payments to be made.’

9 Article 250(1) of the directive is worded as follows: ‘Every taxable person shall submit a VAT return setting out all the information needed to calculate the tax that has become chargeable and the deductions to be made including, in so far as is necessary for the establishment of the basis of assessment, the total value of the transactions relating to such tax and deductions and the value of any exempt transactions.’

10 Article 252(1) of the directive provides: ‘The VAT return shall be submitted by a deadline to be determined by Member States. That deadline may not be more than two months after the end of each tax period.’

11 Article 273 of the directive provides: ‘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.’

Polish law

The VAT Law

12 Article 15(6) of the Ustawa o podatku od towarów i usług (Law on the tax on goods and services) of 11 March 2004 (Dz. U., No 54, item 535; ‘the VAT Law’) provides: ‘Public bodies and the organs which serve them shall not be considered taxable persons so far as concerns the performance of tasks which have been entrusted to them in accordance with other legal provisions and for the execution of which they have been established, with the exception of activities carried out under civil law contracts.’

13 Article 18 of that law states: ‘Enforcement bodies as defined in the Law on enforcement proceedings in administrative matters of 17 June 1966 … and court enforcement officers carrying out enforcement action within the meaning of the Code of Civil Procedure [(ustawa Kodeks postępowania cywilnego) of 17 November 1964 (Dz. U., No 43, item 296), in the version applicable to the facts in the main proceedings (“the Code of Civil Procedure”),] shall be paying agents for tax collected on the supply, effected through enforcement, of goods which are owned by the debtor or in his possession in breach of existing law.’

The Tax Code

14 Article 8 of the Ustawa — Ordynacja podatkowa (Law establishing the Tax Code) of 29 August 1997, in the version applicable to the facts in the main proceedings (Dz. U. 2005, No 8, item 60; ‘the Tax Code’), provides: ‘A paying agent is a natural person, a legal person or an organisational entity without legal personality who is required under tax law to calculate tax, collect tax from a taxable person and pay it to a tax authority in good time.’

15 Article 30 of the Tax Code provides: ‘1. A paying agent who fails to fulfil the obligations laid down in Article 8 shall be liable for any uncollected tax or tax which has been collected but not paid. … 3. A paying agent or payment collector shall be liable in respect of his entire assets for due payments as referred to in paragraphs 1 and 2. … 4. Where, in the course of tax proceedings, a tax authority establishes a circumstance referred to in paragraphs 1 or 2, it shall give a decision on the tax liability of the paying agent or payment collector determining the amount due by way of tax which has not been collected or collected but not paid. …’

The Code of Civil Procedure

16 Article 808(1) of the Law establishing the Code of Civil Procedure states: ‘Where the amount of money deposited in enforcement proceedings is not subject to immediate release, it must be deposited in the court’s deposit account. …’

17 Article 998(1) of the Code of Civil Procedure provides: ‘After the highest bid has...