Joined Cases C‑660/16 and C‑661/16
Finanzamt Dachau v Achim Kollroß
and
Finanzamt Göppingen v Erich Wirtl
(Requests for a preliminary ruling from the Bundesfinanzhof)
(References for a preliminary ruling — Taxation — Common system of value added tax (VAT) — Directive 2006/112/EC — Supply of goods — Article 65 — Article 167 — Payment on account for the purchase of an item not followed by delivery of that item — Supplier’s legal representatives convicted of fraud — Insolvency of the supplier — Deduction of input tax — Conditions — Articles 185 and 186 — Adjustment by the national tax authorities — Conditions)
Summary — Judgment of the Court (Fifth Chamber), 31 May 2018
Harmonisation of fiscal legislation—Common system of value added tax—Deduction of input tax—Payment on account for the purchase of an item not followed by delivery of that item—Right to deduct—Condition—Supply of the item appearing certain at the time the payment on account was made
(Council Directive 2006/112, Arts 65 and 167)
Harmonisation of fiscal legislation—Common system of value added tax—Deduction of input tax—Payment on account for the purchase of an item not followed by delivery of that item—Adjustment of the initial deduction—National law or practice making adjusting the value added tax relating to the payment on account conditional upon that payment being refunded—Lawfulness
(Council Directive 2006/112, Arts 185 and 186)
Articles 65 and 167 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that, in circumstances such as those at issue in the cases in the main proceedings, a potential buyer may not be refused the right to deduct the value added tax relating to a payment on account in respect of the goods in question where that payment has been made and received and where, at the time that payment was made, all the relevant information concerning the future supply could be regarded as known to that buyer and the supply of those goods appeared to be certain. However, that buyer may be refused that right if it is established, having regard to objective elements, that, at the time the payment on account was made, he knew or should reasonably have known that that supply was uncertain.
(see para. 51, operative part 1)
Articles 185 and 186 of Directive 2006/112 must be interpreted as not precluding, in circumstances such as those at issue in the cases in the main proceedings, a national law or practice which has the effect of making adjusting the value added tax relating to a payment on account for the supply of an item conditional upon that payment being refunded by the supplier.
(see para. 69, operative part 2)