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13.8.2011   

EN

Official Journal of the European Union

C 238/7

Reference for a preliminary ruling from the Varhoven Administrativen Sad na Republika Balgaria lodged on 8 June 2011 — EMS Bulgaria TRANSPORT OOD v Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ pri Tsentralno Upravlenie na Natsionalnata Agentsia po Prihodite gr. Plovdiv

(Case C-284/11)

2011/C 238/12

Language of the case: Bulgarian

Referring court

Varhoven Administrativen Sad na Republika Balgaria

Parties to the main proceedings

Applicant: EMS Bulgaria TRANSPORT OOD

Defendant: Direktor na Direktsia‘Obzhalvane i upravlenie na izpalnenieto’ pri Tsentralno Upravlenie na Natsionalnata Agentsia po Prihodite gr. Plovdiv

Questions referred

1.

Are Articles 179(1), 180 and 273 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax and the principle of effectiveness in the field of indirect taxation, which is discussed in the judgment of the Court of Justice in Joined Cases C-95/07 and C-96/07 Ecotrade, to be interpreted as permitting an exclusion period such as that in the present case under Article 72(1) of the Law on value added tax (2008 version), which period was extended — under Section 18 of the transitional and concluding provisions of the Law amending and complementing the Law on value added tax — until the end of April 2009 only for recipients of supplies who became taxable before 1 January 2009, taking into account the circumstances of the dispute in the main proceedings, that is to say:

—

the requirement under national law that a person who has made an intra-Community acquisition and who is not registered under the Law on value added tax register voluntarily as a precondition for exercising the right to deduct input VAT, even though that person does not meet the conditions for compulsory registration;

—

the new rule under Article 73a of the Law on value added tax (in force since 1 January 2009) whereby the right to deduct input value added tax is to be granted irrespective of whether the time-limit under Article 72(1) of the Law on value added tax was complied with, if the tax is chargeable to the recipient of the supply, provided the supply was not concealed and is documented in the accounts;

—

the subsequent amendment of Article 72(1) of the Law on value added tax (in force since 1 January 2010), whereby the right to deduct input value added tax may be exercised during the tax period in which that right arose or in one of the subsequent twelve tax periods?

2.

Is the principle of tax neutrality as a fundamental principle, which is of importance for the establishment and functioning of the common system of value added tax, to be interpreted as meaning that a tax assessment practice such as that at issue in the main proceedings — which acknowledges the late charging of value added tax, levies interest as a penalty and imposes an additional penalty of denial of the right to deduct input value added tax — is permissible in the actual circumstances of the appellant’s case, taking into account the fact that the transaction was not concealed, it was documented in the accounts, the tax authorities had the necessary information, no abuse occurred and the budget was not adversely affected?