Criminal proceedings against Giuseppe Astone.

• Jurisdiction: European Union
• Celex Number: 62015CJ0332
• ECLI: ECLI:EU:C:2016:614
• Date: 28 July 2016
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-332/15

JUDGMENT OF THE COURT (Seventh Chamber)

28 July 2016 (*1 )

‛Reference for a preliminary ruling — Common system of value added tax — Directive 2006/112/EC — Articles 167, 168, 178 to 182, 193, 206, 242, 244, 250, 252 and 273 — Right to deduct VAT — Substantive requirements — Formal requirements — Limitation period — National provisions excluding the right to deduct where there is a failure to comply with the formal requirements — Tax evasion’

In Case C‑332/15,

REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunale di Treviso (District Court, Treviso, Italy), made by decision of 17 April 2015, received at the Court on 6 July 2015, in the criminal proceedings against

Giuseppe Astone,

THE COURT (Seventh Chamber),

composed of C. Toader, President of the Chamber, A. Rosas and E. Jarašiūnas (Rapporteur), Judges,

Advocate General: E. Sharpston,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

— the Italian Government, by G. Palmieri, acting as Agent, and by G. Galluzzo, avvocato dello Stato,

— the Greek Government, by K. Nasopoulou and A. Dimitrakopoulou, acting as Agents,

— the European Commission, by D. Recchia and C. Soulay, 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 Articles 167, 168, 178 to 181, 244 and 250 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 criminal proceedings against Mr Giuseppe Astone, in his capacity as authorised representative of La Società Del Ferro Srl (‘Del Ferro’), for failing to file a value added tax (‘VAT’) return for the tax year 2010.

Legal context

EU law

3 In Title X of the VAT Directive, entitled ‘Deductions’, there are five chapters. Chapter 1 of that title, entitled ‘Origin and scope of right of deduction’, includes, inter alia, Articles 167 and 168 of that directive, worded as follows: ‘Article 167 A right of deduction shall arise at the time the deductible tax becomes chargeable. Article 168 In so far as the goods and services are used for the purposes of the taxed transactions of a taxable person, the taxable person shall be entitled, in the Member State in which he carries out these transactions, to deduct the following from the VAT which he is liable to pay: (a) the VAT due or paid in that Member State in respect of supplies to him of goods or services, carried out or to be carried out by another taxable person; (b) the VAT due in respect of transactions treated as supplies of goods or services ...; (c) the VAT due in respect of intra-Community acquisitions of goods ...; (d) the VAT due on transactions treated as intra-Community acquisitions ...; (e) the VAT due or paid in respect of the importation of goods into that Member State.’

4 Chapter 4 of Title X, entitled ‘Rules governing exercise of the right of deduction’, includes, inter alia, Articles 178 to 182 of that directive, which state: ‘Article 178 In order to exercise the right of deduction, a taxable person must meet the following conditions: (a) for the purposes of deductions pursuant to Article 168(a), in respect of the supply of goods or services, he must hold an invoice drawn up in accordance with Articles 220 to 236 and Articles 238, 239 and 240; (b) for the purposes of deductions pursuant to Article 168(b), in respect of transactions treated as the supply of goods or services, he must comply with the formalities as laid down by each Member State; (c) for the purposes of deductions pursuant to Article 168(c), in respect of the intra-Community acquisition of goods, he must set out in the VAT return provided for in Article 250 all the information needed for the amount of the VAT due on his intra-Community acquisitions of goods to be calculated and he must hold an invoice drawn up in accordance with Articles 220 to 236; (d) for the purposes of deductions pursuant to Article 168(d), in respect of transactions treated as intra-Community acquisitions of goods, he must complete the formalities as laid down by each Member State; (e) for the purposes of deductions pursuant to Article 168(e), in respect of the importation of goods, he must hold an import document specifying him as consignee or importer, and stating the amount of VAT due or enabling that amount to be calculated; ... Article 179 The taxable person shall make the deduction by subtracting from the total amount of VAT due for a given tax period the total amount of VAT in respect of which, during the same period, the right of deduction has arisen and is exercised in accordance with Article 178. ... Article 180 Member States may authorise a taxable person to make a deduction which he has not made in accordance with Articles 178 and 179. Article 181 Member States may authorise a taxable person who does not hold an invoice drawn up in accordance with Articles 220 to 236 to make the deduction referred to in Article 168(c) in respect of his intra-Community acquisitions of goods. Article 182 Member States shall determine the conditions and detailed rules for applying Articles 180 and 181.’

5 Title XI of the VAT Directive, entitled ‘Obligations of taxable persons and certain non-taxable persons’, contains eight chapters. Chapter 1 of that title concerns the ‘Obligation to pay’. In Section 1 of that chapter, entitled ‘Persons liable for payment of VAT to the tax authorities’, Article 193 of that directive states: ‘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 ...’

6 In Section 2 of Chapter 1 of Title XI of the VAT Directive, entitled ‘Payment arrangements’, Article 206 of that directive provides: ‘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.’

7 Chapter 4 of Title XI of the VAT Directive, entitled ‘Accounting’, comprises four sections. In Section 2 of that chapter, entitled ‘General obligations’, Article 242 of that directive states: ‘Every taxable person shall keep accounts in sufficient detail for VAT to be applied and its application checked by the tax authorities.’

8 In Section 3 of Chapter 4, entitled ‘Specific obligations relating to the storage of all invoices’, Article 244 of that directive provides: ‘Every taxable person shall ensure that copies of the invoices issued by himself, or by his customer or, in his name and on his behalf, by a third party, and all the invoices which he has received, are stored.’

9 In Chapter 5 of Title XI of the VAT Directive, entitled ‘Returns’, Articles 250 and 252 of that directive state: ‘Article 250 1. 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. ... Article 252 1. 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. 2. The tax period shall be set by each Member State at one month, two months or three months. Member States may, however, set different tax periods provided that those periods do not exceed one year.’

10 In Chapter 7 of Title XI of the VAT Directive, entitled ‘Miscellaneous provisions’, the first paragraph of Article 273 of that 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.’

Italian law

11 The decreto del Presidente della Repubblica n. 633 — Istituzione e disciplina dell’imposta sul valore aggiunto (Decree No 633 of the President of the Republic establishing and regulating value added tax), of 26 October 1972 (Ordinary Supplement to the GURI No 292 of 11 November 1972), in the version applicable to the dispute in the main proceedings (‘Decree No 633’), includes Article 19, entitled ‘Deductions’. Paragraph 1 of that article provides: ‘1 In order to calculate the tax payable pursuant to Article 17(1) or the surplus referred to in Article 30(2), the amount of tax paid or payable by the taxable person or charged to him in respect of goods and services imported or purchased in the course of a business, artistic activity or profession shall be deductible from the amount of tax on the transactions carried out. The right to deduct the tax on the goods and services purchased or imported shall arise at the time when the tax becomes chargeable and may be exercised, at the latest, in the tax return for the second year after the...