Mahagében Kft v Nemzeti Adó- és Vámhivatal Dél-dunántúli Regionális Adó Főigazgatósága (C-80/11) and Péter Dávid v Nemzeti Adó- és Vámhivatal Észak-alföldi Regionális Adó Főigazgatósága (C-142/11).

• Jurisdiction: European Union
• Celex Number: 62011CJ0080
• ECLI: ECLI:EU:C:2012:373
• Date: 21 June 2012
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C‑80/11,C‑142/11

JUDGMENT OF THE COURT (Third Chamber)

21 June 2012 ( *1 )

‛Taxation — VAT — Sixth Directive — Directive 2006/112/EC — Right to deduct — Conditions governing the exercise of that right — Article 273 — National measures to combat fraud — Practice of the national tax authorities — Refusal of the right to deduct in the event of improper conduct on the part of the issuer of the invoice relating to the goods or services in respect of which the exercise of that right is sought — Burden of proof — Obligation of the taxable person to satisfy himself as to the propriety of the conduct of the issuer of that invoice and to provide proof thereof’

In Joined Cases C-80/11 and C-142/11,

REFERENCES for a preliminary ruling under Article 267 TFEU from the Baranya Megyei Bíróság (Hungary) and the Jász-Nagykun-Szolnok Megyei Bíróság (Hungary), made by decisions of 9 February and 9 March 2011, received at the Court on 22 February and 23 March 2011, in the proceedings

Mahagében kft

v

Nemzeti Adó- és Vámhivatal Dél-dunántúli Regionális Adó Főigazgatósága (C-80/11),

and

Péter Dávid

v

Nemzeti Adó- és Vámhivatal Észak-alföldi Regionális Adó Főigazgatósága (C-142/11),

THE COURT (Third Chamber),

composed of K. Lenaerts, President of the Chamber, J. Malenovský, E. Juhász, G. Arestis and T. von Danwitz (Rapporteur), Judges,

Advocate General: P. Mengozzi,

Registrar: C. Strömholm, Administrator,

having regard to the written procedure and further to the hearing on 15 March 2012,

after considering the observations submitted on behalf of:

— the Hungarian Government, by M. Fehér, K. Szíjjártó and K. Veres, acting as Agents,

— the Spanish Government, by S. Centeno Huerta, acting as Agent,

— the United Kingdom Government, by P. Moser, Barrister,

— the European Commission, by V. Bottka, A. Sipos 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 These references for a preliminary ruling concern 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 2001/115/EC of 20 December 2001 (OJ 2002 L 15, p. 24) (‘the Sixth Directive’), and of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).

2 The references have been made in two sets of proceedings between, first, Mahagében kft (‘Mahagében’) and the Nemzeti Adó- és Vámhivatal Dél-dunántúli Regionális Adó Főigazgatósága (Regional Directorate-General for Tax of Dél-Dunántúli), and, second, Mr Dávid and the Nemzeti Adó- és Vámhivatal Észak-alföldi Regionális Adó Főigazgatósága (Regional Directorate-General for Tax of Észak-Alföldi), concerning the refusal of the tax authorities to allow the right to deduct input value added tax (‘VAT’) on transactions considered to be suspicious.

Legal context

European Union law

3 Pursuant to Articles 411 and 413 thereof, Directive 2006/112 repealed and replaced, as from 1 January 2007, European Union law on VAT, including the Sixth Directive. According to recitals 1 and 3 in the preamble to Directive 2006/112, the recasting of the Sixth Directive was necessary to ensure that all the applicable provisions are presented in a clear and rational manner in a revised structure and wording while, in principle, no material changes are made. The provisions of Directive 2006/112 are therefore, essentially, identical to the corresponding provisions of the Sixth Directive.

4 Article 2(1)(a) and (c) of Directive 2006/112, which essentially repeats the wording of Article 2(1) of the Sixth Directive, makes the supply of goods and services for consideration within the territory of a Member State by a taxable person acting as such subject to VAT.

5 Under Article 167 of Directive 2006/112, worded in identical terms to Article 17(1) of the Sixth Directive, ‘[a] right of deduction shall arise at the time the deductible tax becomes chargeable’.

6 Article 168(a) of Directive 2006/112, which essentially repeats the wording of Article 17(2)(a) of the Sixth Directive, in the version resulting from Article 28f(1) of that directive, provides: ‘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’.

7 Article 178 of Directive 2006/112, which features in Chapter 4, headed ‘Rules governing exercise of the right of deduction’, of Title X of the directive, provides: ‘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; ...’

8 That provision corresponds to Article 18(1)(a) of the Sixth Directive, in the version resulting from Article 28f(2) of that directive, which refers to the requirements of Article 22(3) thereof, in the version resulting from Article 28h thereof.

9 Under Article 220(1) of Directive 2006/112, which repeats in essence the wording of Article 22(3)(a) of the Sixth Directive, in the version resulting from Article 28h of the latter directive, every taxable person is required to ensure that an invoice is issued, either by himself or by his customer or, in his name and on his behalf, by a third party, in respect of supplies of goods or services which he has made to another taxable person or to a non-taxable legal person.

10 Article 226 of Directive 2006/112 essentially repeats the wording of Article 22(3)(b) of the Sixth Directive, in the version resulting from Article 28h of the latter directive, and lists the only details which, without prejudice to the particular provisions laid down in Directive 2006/112, are required for VAT purposes on invoices issued pursuant to Articles 220 and 221 of that directive.

11 Article 273 of Directive 2006/112, the wording of which is essentially identical to that of Article 22(8) of the Sixth Directive, in the version resulting from Article 28h of the latter 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.’

Hungarian law

12 Paragraph 32(1)(a) of Law LXXIV of 1992 on value added tax (az általános forgalmi adóról szóló 1992. évi LXXIV. törvény, Magyar Közlöny 1992/128 (XII.19.); ‘the Law on VAT’), provides that a taxable person is to have the right to deduct, from the tax that he is required to pay, the amount of tax which another taxable person has passed on to him in connection with the supply of goods or the performance of services.

13 Under Paragraph 34(1) of that Law, ‘[t]he right of deduction may only be exercised by taxable persons who are required to pay tax and use single-entry or double-entry bookkeeping’.

14 According to Paragraph 35(1)(a) of that Law, unless otherwise prescribed by the Law on Taxation, the right of deduction may only be exercised by persons who hold documentation attesting to the amount of tax charged. Invoices, simplified invoices and documents which take the place of an invoice, made out in the name of the taxable person, are to be considered to constitute such documentation.

15 Paragraph 44(5) of the Law on VAT provides: ‘The issuer of the invoice or simplified invoice shall be responsible for the veracity of the information given therein. The taxation rights of the taxable person indicated as the purchaser in the receipt may not be called into question if that person acted with due diligence as regards the chargeable event, bearing in mind the circumstances under which the goods were supplied or the services performed.’

The disputes in the main proceedings and the questions referred for a preliminary ruling

Case C-80/11

16 On 1 June 2007, Mahagében concluded a contract with Rómahegy-Kert kft (‘RK’) for the supply of unprocessed acacia logs between 1 June and 31 December 2007. During that period, RK issued sixteen invoices in the name of Mahagében for the delivery of various quantities of acacia logs. The number of the delivery note, attached as an annex, was also indicated on six of those invoices. RK declared all of the invoices in its tax return, stating that the deliveries had taken place, and paid the VAT following delivery. Mahagében also included those invoices in its tax return and exercised its right to deduct. The quantities of acacia logs purchased from RK were included in Mahagében’s stocks and were resold by it to various...