Valuation made by the Spanish Tax Authorities about the evidence of fraud in VAT, rejecting the inclusion in the VIES of an entity
This case is an appeal brought by a Spanish company before the Spanish Central Economic-Administrative Court against the decision of the Spanish Tax Authorities to refuse its inclusion into the VIES registry.
The Tax Authorities primarily based its decision to refuse the inclusion of the company in the VIES registry in which the information obtained by the Tax Authorities, it seems that its main and almost only client is a company dedicated, like the appellant, to the distribution of photographic and computer equipment, which previously was involved in a VAT fraud case for which it was excluded from the ROI. In addition, both companies use the same offices and the surnames of their directors match up, suggesting the Administration in the existence of a direct relationship between them.
For its part, the appellant entity alleges before the Court that the evidence on which the Administration relies to refuse the inclusion of the entity into the VIES registry are just assumptions.
The Court notes that Article 144.4.c) of the Spanish General Regulation of the actions and procedures of tax management, based on EU Directive 2006/112 / EC Council establishes that the Administration recognizes the appropriate roles of census verification, namely that:
“It may decide to precautionary removal from the VIES Register and exporters and other market participants in the trade regime for persons or entities included therein by reasons of the delegate or the head of the relevant department of the State Tax Administration Agency Agreement, previous report proposing body, in the following cases: (…)
When the possible intervention of the taxpayer is found in intra-EU or overseas operations which may arise from the failure of the tax obligation or improperly obtaining benefits or tax refunds in connection with the payment of VAT. (…) “
However, the Court notes that the discretion of the administration is not unlimited and in this connection refers to the judgment of the European Court of Justice of 14 March 2013, Case C527 / 11 (Ablessio) which mentions that Member States are entitled to take measures to prevent the misuse of identification numbers, but these measures go beyond what is necessary to ensure the correct collection of tax and preventing fraud without question systematically the right to deduct VAT or neutrality. Therefore, for the refusal to include a company into the VIES registry is proportionate to the objective of preventing fraud, such refusal should be based on real indication to objectively consider the identification VAT number he attributed to that taxpayer is used fraudulently, a decision that should be based on an overall assessment of all the circumstances of the case and the evidence gathered to verify the information provided by the company (or which are specified or meet the Tax Authorities, in the case of refusing the inclusion into the VIES registry).
Finally, the Court rules against the appellant to see that the Tax Authorities has denied the inclusion of company into the VIES registry based on the overall assessment of all the circumstances. It also mentions that the aforesaid law does not require a finding that the company has been involved in intra-Community trade operations which defaults arising in relation to VAT but only speaks of “possible intervention”. It also expresses the Court that the appellant has presented no evidence to rebut the evidence manifested by the Tax Administration.
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