C-499/13 Macikowski

JUDGMENT OF THE COURT (First Chamber)

26 March 2015 ( *1 )

‛Reference for a preliminary ruling — Common system of value added tax — Principles of proportionality and fiscal neutrality — Taxation of a supply of immovable property in a procedure for compulsory sale by auction — National legislation requiring the court enforcement officer executing such a sale to calculate and pay VAT on the transaction — Payment of the purchase price to the competent court and need for the VAT to be paid to be transferred by that court to the court enforcement officer — Liability for damages and criminal liability of the court enforcement officer for non-payment of VAT — Difference between the general statutory time-limit for the payment of VAT by a taxable person and the time-limit imposed on the court enforcement officer — Impossibility of deducting the input VAT paid’

In Case C‑499/13,

REQUEST for a preliminary ruling under Article 267 TFEU from the Naczelny Sąd Administracyjny (Poland), made by decision of 21 February 2013, received at the Court on 16 September 2013, in the proceedings

Marian Macikowski

v

Dyrektor Izby Skarbowej w Gdańsku,

THE COURT (First Chamber),

composed of A. Tizzano, President of the Chamber, S. Rodin, A. Borg Barthet (Rapporteur), E. Levits and F. Biltgen, Judges,

Advocate General: J. Kokott,

Registrar: K. Malacek, Administrator,

having regard to the written procedure and further to the hearing on 4 September 2014,

after considering the observations submitted on behalf of:

Mr Macikowski, by M. Kalinowski, radca prawny,

the Dyrektor Izby Skarbowej w Gdańsku, by T. Tratkiewicz and J. Kaute, acting as Agents,

the Polish Government, by B. Majczyna and A. Gawłowska, acting as Agents,

the European Commission, by M. Owsiany-Hornung and L. Lozano Palacios, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 6 November 2014,

gives the following

Judgment

Legal context and the dispute

1This request for a preliminary ruling concerns the interpretation of the principles of proportionality and fiscal neutrality and of Articles 9, 193, 199, 206, 250 and 252 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’).

2The request has been made in proceedings between Mr Macikowski, a court enforcement officer, and the Dyrektor Izby Skarbowej w Gdańsku (Director of the Tax Chamber, Gdańsk) concerning the failure to pay in due time the value added tax (VAT) payable in respect of the sale of immovable property effected through enforcement.

Legal context

EU law

3Article 9(1) of the VAT Directive provides:

‘“Taxable person” shall mean any person who, independently, carries out in any place any economic activity, whatever the purpose or results of that activity.

Any activity of producers, traders or persons supplying services, including mining and agricultural activities and activities of the professions, shall be regarded as “economic activity”. The exploitation of tangible or intangible property for the purposes of obtaining income therefrom on a continuing basis shall in particular be regarded as an economic activity.’

4Article 193 of that directive is worded as follows:

‘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 in the cases referred to in Articles 194 to 199 and Article 202.’

5Article 199(1)(g) of the directive states:

‘Member States may provide that the person liable for payment of VAT is the taxable person to whom any of the following supplies are made:

…

the supply of immovable property sold by a judgment debtor in a compulsory sale procedure.’

6Article 204 of the directive provides:

‘1. Where, pursuant to Articles 193 to 197 and Articles 199 and 200, the person liable for payment of VAT is a taxable person who is not established in the Member State in which the VAT is due, Member States may allow that person to appoint a tax representative as the person liable for payment of the VAT.

Furthermore, where the taxable transaction is carried out by a taxable person who is not established in the Member State in which the VAT is due and no legal instrument exists, with the country in which that taxable person is established or has his seat, relating to mutual assistance similar in scope to that provided for in Directive 76/308/EEC … and Regulation (EC) No 1798/2003 …, Member States may take measures to provide that the person liable for payment of VAT is to be a tax representative appointed by the non-established taxable person.

However, Member States may not apply the option referred to in the second subparagraph to a non-established taxable person, within the meaning of point (1) of Article 358, who has opted for the special scheme for electronically supplied services.

2. The option under the first subparagraph of paragraph 1 shall be subject to the conditions and procedures laid down by each Member State.’

7Article 205 of the directive provides:

‘In the situations referred to in Articles 193 to 200 and Articles 202, 203 and 204, Member States may provide that a person other than the person liable for payment of VAT is to be held jointly and severally liable for payment of VAT.’

8Article 206 of the directive states:

‘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.’

9Article 250(1) of the directive is worded as follows:

‘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.’

10Article 252(1) of the directive provides:

‘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.’

11Article 273 of the 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.’

Polish law

The VAT Law

12Article 15(6) of the Ustawa o podatku od towarów i usług (Law on the tax on goods and services) of 11 March 2004 (Dz. U., No 54, item 535; ‘the VAT Law’) provides:

‘Public bodies and the organs which serve them shall not be considered taxable persons so far as concerns the performance of tasks which have been entrusted to them in accordance with other legal provisions and for the execution of which they have been established, with the exception of activities carried out under civil law contracts.’

13Article 18 of that law states:

‘Enforcement bodies as defined in the Law on enforcement proceedings in administrative matters of 17 June 1966 … and court enforcement officers carrying out enforcement action within the meaning of the Code of Civil Procedure [(ustawa Kodeks postępowania cywilnego) of 17 November 1964 (Dz. U., No 43, item 296), in the version applicable to the facts in the main proceedings (“the Code of Civil Procedure”),] shall be paying agents for tax collected on the supply, effected through enforcement, of goods which are owned by the debtor or in his possession in breach of existing law.’

The Tax Code

14Article 8 of the Ustawa — Ordynacja podatkowa (Law establishing the Tax Code) of 29 August 1997, in the version applicable to the facts in the main proceedings (Dz. U. 2005, No 8, item 60; ‘the Tax Code’), provides:

‘A paying agent is a natural person, a legal person or an organisational entity without legal personality who is required under tax law to calculate tax, collect tax from a taxable person and pay it to a tax authority in good time.’

15Article 30 of the Tax Code provides:

‘1. A paying agent who fails to fulfil the obligations laid down in Article 8 shall be liable for any uncollected tax or tax which has been collected but not paid.

…

3. A paying agent or payment collector shall be liable in respect of his entire assets for due payments as referred to in paragraphs 1 and 2.

…

4. Where, in the course of tax proceedings, a tax authority establishes a circumstance referred to in paragraphs 1 or 2, it shall give a decision on the tax liability of the paying agent or payment collector determining the amount due by way of tax which has not been collected or collected but not paid.

…’

The Code of Civil Procedure

16Article 808(1) of the Law establishing the Code of Civil Procedure states:

‘Where the amount of money deposited in enforcement proceedings is not subject to immediate release, it must be deposited in the court’s deposit account. …’

17Article 998(1) of the Code of Civil Procedure provides:

‘After the highest bid has become final and the purchaser has fulfilled the auction conditions or an order has been made fixing the purchase price and the Treasury has paid the amount in full, the court shall make an order awarding ownership.’

18Article 999(1) of that code provides:

‘A final order awarding ownership shall transfer ownership to the purchaser and be the instrument demonstrating the purchaser’s right of ownership in the cadastral register, together with an entry in the land register and the placing of documents on file. The final order awarding ownership shall also be an enforcement instrument entitling the purchaser to take possession of immovable property.’

19Article 1023(1) of that code provides as follows:

‘The enforcement body shall draw up a plan to divide among the creditors the amount obtained from the enforcement against the immovable property.’

20Article 1024(1) of that code states:

‘The plan for dividing the amount shall state:

the amount to be divided;

the claims and rights of the persons participating in the division;

the amount attributable to each of the participants in the division;

the amounts to be paid and the amounts left in the court’s deposit account, with an indication of the reasons justifying the suspension of their payment.

…’

21Article 1035 of that code provides:

‘Immediately after the amount to be divided has been placed in the court’s deposit account, the court enforcement officer shall draw up a draft plan for dividing the amount obtained from the enforcement and submit it to the court. If necessary, the court shall amend and supplement the plan; otherwise, it shall approve the plan.’

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

22Mr Macikowski is a court enforcement officer at the Sąd Rejonowy w Chojnicach (District Court, Chojnice).

23At the request of a creditor, he took enforcement action against Royal sp. z o.o. (‘Royal’), which was a taxable person for VAT purposes.

24As part of that procedure Mr Macikowski seized immovable property belonging to Royal.

25The auction of the immovable property at issue was held on 16 February 2007. By order of 22 March 2007, which became final on 22 August 2007, the Sąd Rejonowy w Chojnicach awarded ownership of the immovable property to Mr and Mrs Babinski at the highest bid price of 1424201 Polish zlotys (PLN). The purchasers paid that price in full into the account of the Sąd Rejonowy w Chojnicach.

26By order of 27 October 2008, Mr Macikowski drew up a draft plan for dividing that sum, in which, inter alia, he identified an amount of PLN 256823,13 due in respect of VAT to be paid to the Tax Office in Chojnice.

27On 26 January 2009, Mr Macikowski requested the Sąd Rejonowy w Chojnicach to transfer PLN 256823,13 to his account to enable him, as paying agent, to pay the VAT due on the transfer of ownership by auction of Royal’s immovable property.

28The Sąd Rejonowy w Chojnicach transferred that amount to Mr Macikowski’s account after the plan for division had become final. Mr Macikowski consequently issued an invoice documenting the VAT on the sale of that immovable property on 31 August 2009, and informed the tax authority of the payment of the tax on 2 September 2009.

29Referring inter alia to Article 18 of the VAT Law in conjunction with Articles 8 and 30(1), (3) and (4) of the Tax Code, the Head of the Tax Office in Chojnice ruled that Mr Macikowski was liable, as the paying agent, for VAT of PLN 256823,13 which had been collected but not paid in time in connection with the sale of Royal’s immovable property. In the view of the Tax Office in Chojnice, since Mr Macikowski was taking enforcement action, he had been required, in November 2007, to issue on behalf of the debtor, Royal, a VAT invoice documenting the sale of that company’s immovable property for a gross amount of PLN 1424201, including tax of PLN 256823,13, and to pay that tax into the account of the competent tax office by 25 December 2007.

30By judgment of 10 October 2011, the Wojewódzki Sąd Administracyjny w Gdańsku (Regional Administrative Court, Gdańsk) dismissed the action brought by Mr Macikowski against the decision of the Dyrektor Izby Skarbowej w Gdańsku of 23 November 2009 ruling on the tax liability of the paying agent for the failure to pay in time the VAT on the enforced sale of Royal’s immovable property. In the grounds of appeal that court pointed out that it was bound in this case by the interpretation of the Naczelny Sąd Administracyjny (Supreme Administrative Court), which had not questioned the legal basis of that decision and had accepted that it was possible in law for Mr Macikowski to fulfil his obligations under Article 18 of the VAT Law.

31Mr Macikowski appealed on a point of law against that judgment to the Naczelny Sąd Administracyjny. In the grounds of appeal he claimed that the judgment had made an erroneous interpretation of Article 18 of the VAT Law by not taking account of the provisions of EU law on VAT, namely the provisions of the VAT Directive.

32In those circumstances, considering that the examination of that appeal on a point of law required an interpretation of EU law, the Naczelny Sąd Administracyjny decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

In the light of the system of VAT resulting from the VAT Directive, in particular Articles 9 and 193, in conjunction with Article 199(1)(g), is a provision of national law permissible, such as that in Article 18 of the VAT Law, which introduces exceptions to the general rules on that tax, in particular with regard to the persons required to calculate and collect the tax, by establishing the concept of paying agent, that is to say, a person who is required, on behalf of the taxable person, to calculate the amount of tax, collect it from the taxable person, and pay it to the tax authority in good time?

2If the answer to the first question is in the affirmative:

In the light of the principle of proportionality, which is a general principle of EU law, is a provision of national law permissible, such as that in Article 18 of the VAT Law, under which, inter alia, tax on the supply of immovable property effected through enforcement in respect of goods owned by the debtor or in his possession in breach of existing law is calculated, collected and paid by a court enforcement officer carrying out an enforcement action who, as paying agent, bears liability in the event of failure to fulfil that obligation?

In the light of Articles 206, 250 and 252 of the VAT Directive and of the principle of neutrality arising therefrom, is a provision of national law permissible, such as that in Article 18 of the VAT Law, under which a paying agent as referred to in that provision is required to calculate, collect and pay, within the tax period of the taxable person, an amount of VAT on a supply, effected through enforcement, of goods owned by that taxable person or in his possession in breach of the law in force, in an amount comprising the product of the proceeds from the sale of the goods, minus VAT, and the applicable rate of that tax, with no reduction of that amount by the amount of input tax from the beginning of the tax period to the date of the collection of that tax from the taxable person?’

Consideration of the questions referred

Question 1

33By its first question, the referring court asks, in essence, whether Articles 9, 193 and 199(1)(g) of the VAT Directive must be interpreted as precluding a provision of national law, such as that at issue in the main proceedings, which, within the context of a sale of immovable property effected through enforcement, imposes on a person — namely the court enforcement officer who made the sale — obligations to calculate, collect and pay the VAT on the proceeds of that transaction within the prescribed time-limits.

34In order to answer that question, it must be stated, first, that Article 199(1)(g) of the VAT Directive authorises Member States to designate, in the case of the supply of immovable property sold in a compulsory sale procedure, the purchaser of the immovable property as the person liable for payment of VAT, provided that that person is a taxable person, in order to ensure the correct collection of VAT and to prevent evasion.

35Secondly, it follows from Article 273 of the VAT Directive that Member States may impose other obligations which they deem necessary to ensure the correct collection of VAT and to prevent evasion.

36In that regard, the Court has already had occasion to hold that, given that Articles 90(1) and 273 of the VAT Directive do not, outside the limits laid down therein, specify either the conditions or the obligations which the Member States may impose, those provisions give the Member States a margin of discretion (see judgment in Kraft Foods Polska, C-588/10, EU:C:2012:40, paragraph 23).

37However, the measures which the Member States may adopt under Article 273 of the VAT Directive to ensure the correct collection of the tax and to prevent evasion must not go further than is necessary to attain such objectives and must not undermine the neutrality of VAT (see judgments in Nidera Handelscompagnie, C‑385/09, EU:C:2010:627, paragraph 49, and Klub, C‑153/11, EU:C:2012:163, paragraph 50).

38In the present case, first, it is apparent from the observations of the Polish Government that the intermediary system established by the national legislation at issue in the main proceedings, according to which the court enforcement officer is responsible for the calculation, collection and payment of the VAT on the proceeds of a sale effected through enforcement, seeks to prevent the taxable person, having regard to his financial situation, from infringing his fiscal obligation to pay VAT.

39Therefore, such legislation is capable of falling within Article 273 of the VAT Directive, since the Republic of Poland deems such a measure necessary to ensure the correct collection of VAT.

40Secondly, neither Article 193 nor Article 199(1)(g) of the VAT Directive precludes such legislation.

41Although it is true that those provisions provide, in essence, that the tax may be payable only by a taxable person carrying out a taxable supply of goods or, in certain circumstances, by the purchaser of the immovable property, the function of the court enforcement officer as the intermediary responsible for the collection of that tax does not fall within those provisions.

42Thus, Article 18 of the VAT Law defines the function of the court enforcement officer carrying out a sale through enforcement as that of an intermediary merely ensuring the collection of the amount of the tax and its payment to the tax authority on behalf of the taxable person by whom it is payable, within the prescribed time-limit. In that situation, the court enforcement officer’s obligation is not a fiscal obligation, because that obligation still lies with the taxable person.

43In so doing, first, the court enforcement officer does not infringe any competence or obligation of the taxable person and merely ensures that the amount of the VAT corresponding to a specific transaction is paid to the tax authority.

44Secondly, the legislation at issue in the main proceedings does not provide that the court enforcement officer is jointly and severally liable with that taxable person for the payment of VAT. In addition, he is not a tax representative of the taxable person within the meaning of Article 204 of the VAT Directive.

45It follows from those considerations that Articles 9, 193 and 199(1)(g) of the VAT Directive must be interpreted as not precluding a provision of national law, such as that at issue in the main proceedings, which, within the context of a sale of immovable property effected through enforcement, imposes on a person — namely the court enforcement officer who made the sale — obligations to calculate, collect and pay the VAT on the proceeds of that transaction within the prescribed time-limits.

Question 2(a)

46By question 2(a), the referring court asks, in essence, whether the principle of proportionality must be interpreted as precluding a provision of national law, such as that at issue in the main proceedings, under which a court enforcement officer must be liable with his entire assets for the amount of VAT due on the proceeds of the sale of immovable property effected through enforcement where he does not discharge his obligation to collect and pay that tax.

47In that regard, it should be noted that, according to settled case-law, in the exercise of the powers conferred on them by European Union directives, Member States must respect the general principles of law that form part of the European Union legal order, which include, in particular, the principles of legal certainty and proportionality (see, to that effect, judgments in Schloßstrasse, C‑396/98, EU:C:2000:303, paragraph 44, and ‘Goed Wonen’, C‑376/02, EU:C:2005:251, paragraph 32).

48With more particular regard to the principle of proportionality, it must be pointed out that, whilst it is legitimate for the measures adopted by the Member States, on the basis of the provisions of the VAT Directive, to seek to preserve the rights of the public exchequer as effectively as possible, such measures must not go further than is necessary for that purpose (see, to that effect, judgments in Molenheide and Others, C‑286/94, C‑340/95, C‑401/95 and C‑47/96, EU:C:1997:623, paragraph 47, and Federation of Technological Industries and Others, C‑384/04, EU:C:2006:309, paragraph 30).

49In particular, legislation which would hold a court enforcement officer liable for conduct which is not attributable to him personally cannot be considered to be proportionate.

50In that regard, the court enforcement officer should have the legal means to carry out his tasks, without his liability depending on factors over which he has no influence, including actions or omissions attributable to third parties.

51In that context, it should be borne in mind that it is not for the Court, in the context of the judicial cooperation established by Article 267 TFEU, to give a ruling on the interpretation of provisions of national law, or to decide whether the referring court’s interpretation of those provisions is correct. The Court must take account, under the division of jurisdiction between it and the national courts, of the factual and legislative context, as described in the order for reference, in which the questions put to it are set (judgments in Fundación Gala-Salvador Dalí and VEGAP, C‑518/08, EU:C:2010:191, paragraph 21 and the case-law cited, and Logstor ROR Polska, C‑212/10, EU:C:2011:404, paragraph 30).

52Consequently, it is for the referring court to determine whether court enforcement officers have all legal means to discharge, within the time-limits, the obligation to collect and pay the VAT due in respect of the sale of property effected through enforcement, in so far as they fulfil their obligations correctly and in accordance with law.

53The answer to question 2(a) is therefore that the principle of proportionality must be interpreted as not precluding a provision of national law, such as that at issue in the main proceedings, under which a court enforcement officer must be liable with his entire assets for the amount of VAT due on the proceeds of the sale of immovable property effected through enforcement where he does not discharge his obligation to collect and pay that tax, provided that the court enforcement officer concerned actually has all legal means to discharge that obligation, which it is for the referring court to determine.

Question 2(b)

54By question 2(b), the referring court asks, in essence, whether Articles 206, 250 and 252 of the VAT Directive and the principle of fiscal neutrality must be interpreted as precluding a provision of national law, such as that at issue in the main proceedings, under which the paying agent as referred to in that provision is required to calculate, collect and pay an amount of VAT on a sale of goods effected through enforcement without being able to deduct the amount of VAT paid as input tax by the supplier from the beginning of the tax period to the date of the collection of that tax from the taxable person.

55It should be remembered that, according to settled case-law, the right to deduct provided for in Article 167 et seq. of the VAT Directive is an integral part of the VAT scheme and, in principle, may not be limited. The right to deduct is exercisable immediately in respect of all the taxes charged on transactions relating to inputs (see, inter alia, judgments in Gabalfrisa and Others, C‑110/98 to C‑147/98, EU:C:2000:145, paragraph 43; Kittel and Recolta Recycling, C‑439/04 and C‑440/04, EU:C:2006:446, paragraph 47; Mahagében and Dávid, C‑80/11 and C‑142/11, EU:C:2012:373, paragraph 38; and Gran Via Moineşti, C‑257/11, EU:C:2012:759, paragraph 21).

56In addition, it follows from Articles 206 and 250 of the VAT Directive that the amount of VAT paid to the public exchequer must be a net amount, that is to say an amount which takes account of the deductions to be made, and that all the deductions must be made in relation to the tax period during which they arose.

57In the main proceedings, it is the taxable person who owns the goods auctioned by the court enforcement officer, and not the paying agent, who is required to submit a VAT return taking account of the sale of his goods. It is also the taxable person, and not the paying agent, who has the right to deduct the VAT paid as input tax from the VAT owed on the basis of that transaction. That deduction concerns the tax period during which that transaction took place.

58If the paying agent pays the VAT owed on the basis of that transaction after the submission of the return by the taxable person, such a situation may be justified under the second sentence of Article 206 of the VAT Directive which permits Member States to require interim payments to be made.

59In the case of the mechanism established by Article 18 of the VAT Law, the supplier does not have at his disposal the amount of the VAT due on a transaction effected through enforcement. For that reason, he cannot use that amount in order to deduct the VAT paid as input tax, but he retains the right to deduct. Thus, if the VAT paid as input tax by the taxable person, who owns the goods auctioned, on the basis of transactions effected during the tax period concerned, which he is entitled to deduct, is greater than the VAT due by reason of the sale of those goods, the taxable person may possibly obtain the repayment of an overpayment from the tax authority.

60Therefore it must be held that such a mechanism complies with the provisions of the VAT Directive and that, in particular, it does not contravene Articles 250 and 252 of that directive.

61Consequently, the answer to question 2(b) is that Articles 206, 250 and 252 of the VAT Directive and the principle of fiscal neutrality must be interpreted as not precluding a provision of national law, such as that at issue in the main proceedings, under which the paying agent as referred to in that provision is required to calculate, collect and pay an amount of VAT on a sale of goods effected through enforcement without being able to deduct the amount of VAT paid as input tax from the beginning of the tax period to the date of the collection of that tax from the taxable person.

Costs

62Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

On those grounds, the Court (First Chamber) hereby rules:

Articles 9, 193 and 199(1)(g) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as not precluding a provision of national law, such as that at issue in the main proceedings, which, within the context of a sale of immovable property effected through enforcement, imposes on a person — namely the court enforcement officer who made the sale — obligations to calculate, collect and pay the value added tax on the proceeds of that transaction within the prescribed time-limits.

The principle of proportionality must be interpreted as not precluding a provision of national law, such as that at issue in the main proceedings, under which a court enforcement officer must be liable with his entire assets for the amount of value added tax due on the proceeds of the sale of immovable property effected through enforcement where he does not discharge his obligation to collect and pay that tax, provided that the court enforcement officer concerned actually has all legal means to discharge that obligation, which it is for the referring court to determine.

Articles 206, 250 and 252 of Directive 2006/112 and the principle of fiscal neutrality must be interpreted as not precluding a provision of national law, such as that at issue in the main proceedings, under which the paying agent as referred to in that provision is required to calculate, collect and pay an amount of value added tax on a sale of goods effected through enforcement without being able to deduct the amount of value added tax paid as input tax from the beginning of the tax period to the date of the collection of that tax from the taxable person.

Signatures

[Signatures]

( *1 ) Language of the case: Polish.

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 6 November 2014 ¹

‛Tax law — Value added tax — Articles 193, 199(1)(g) and 204 to 206 of Directive 2006/112/EC — Supply of immovable property by compulsory sale by auction — Obligation of the court enforcement officer acting to calculate, collect and pay value added tax — Liability for unpaid tax — Principle of proportionality — Principle of fiscal neutrality’

I – Introduction

1Any tax law is ineffective if its effective enforcement is not ensured. It is therefore no wonder that the Member States of the Union give this point special attention. Thus they have no shortage of ideas for imposing various obligations in order to ensure in practice that the tax authority receives tax due.

2The present request for a preliminary ruling concerns a supply liable to value added tax (VAT) which was effected by a compulsory sale of immovable property by auction. Polish law imposes particular obligations on the court enforcement officer involved in this process in respect of the VAT arising, because in the case of a compulsory sale procedure the debtor is not trusted to pay the VAT himself. If the court enforcement officer does not perform these obligations, he is liable for the tax.

3In the present proceedings the Court is required to clarify whether these obligations imposed on the court enforcement officer are compatible with EU law on VAT.

II – Legal framework

A – EU law

4At the relevant time for the present proceedings, VAT within the European Union was levied on the basis of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax ² (‘the VAT Directive’).

5Under Article 9(1) of the VAT Directive, ‘taxable person’ means ‘any person who, independently, carries out in any place any economic activity, whatever the purpose or results of that activity’.

6Title XI of the VAT Directive concerns ‘Obligations of taxable persons and certain non-taxable persons’. Chapter 1 (‘Obligation to pay’) contains Articles 192a to 205, which concern ‘persons liable for payment of VAT to the tax authorities’.

7Article 193 of the VAT Directive provides:

‘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 in the cases referred to in Articles 194 to 199 and Article 202.’

8Under Article 199(1) of the VAT Directive, the Member States may provide that ‘the person liable for payment of VAT is the taxable person to whom any of the following supplies are made:

…

the supply of immovable property sold by a judgment debtor in a compulsory sale procedure.’

9Article 204(1) of the VAT Directive provides:

‘Where, pursuant to Articles 193 to 197 and Articles 199 and 200, the person liable for payment of VAT is a taxable person who is not established in the Member State in which the VAT is due, Member States may allow that person to appoint a tax representative as the person liable for payment of the VAT.

Furthermore, where the taxable transaction is carried out by a taxable person who is not established in the Member State in which the VAT is due and no legal instrument exists, with the country in which that taxable person is established or has his seat, relating to mutual assistance similar in scope to that provided for in Directive 76/308/EEC and Regulation (EC) No 1798/2003, Member States may take measures to provide that the person liable for payment of VAT is to be a tax representative appointed by the non-established taxable person.’

10Article 205 of the VAT directive provides:

‘In the situations referred to in Articles 193 to 200 and Articles 202, 203 and 204, Member States may provide that a person other than the person liable for payment of VAT is to be held jointly and severally liable for payment of VAT.’

11The following articles are concerned with ‘Payment arrangements’. They include Article 206 of the VAT Directive, which 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.’

12In Chapter 5 (‘Returns’) of Title XI, Article 250 of the VAT Directive provides inter alia:

‘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.

…’

13Article 252 of the VAT Directive provides:

‘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.

14Finally, in Chapter 7 (‘Miscellaneous provisions’) of Title XI, Article 273 of the VAT 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.’

B – National law

15Article 18 of the Ustawa o podatku od towarów i usług of 11 March 2004 (‘the Polish VAT law’) provides:

‘… court enforcement officers carrying out enforcement action within the meaning of the Code of Civil Procedure shall be paying agents for tax collected on the supply, effected through enforcement, of goods which are owned by the debtor or in his possession in breach of existing law.’

16Article 8 of the Ustawa Ordynacja podatkowa of 29 August 1997 (‘the Polish Tax Code’) defines a ‘paying agent’ as including ‘a natural person, a legal person or an organisational entity without legal personality who is required under tax law to calculate tax, collect tax from a taxable person and pay it to a tax authority in good time’.

17Article 30 of the Polish Tax Code provides inter alia:

‘1. A paying agent who fails to fulfil the obligations laid down in Article 8 shall be liable for any uncollected tax or tax which has been collected but not paid.

…

3. A paying agent … shall be liable in respect of his entire assets for due payments as referred to in [paragraph 1].

4. Where, in the course of tax proceedings, a tax authority establishes a circumstance referred to in [paragraph 1], it shall give a decision on the tax liability of the paying agent … determining the amount due by way of tax which has not been collected or collected but not paid.’

III – Main proceedings and proceedings before the Court

18The main proceedings concern the liability of Mr Macikowski for VAT which arose on a compulsory sale by auction.

19In February 2007 Mr Macikowski, acting in his capacity as court enforcement officer in enforcement proceedings against a company established in Poland, carried out a compulsory sale by auction of immovable property owned by the company. The purchasers paid the hammer price in full into the court’s deposit account, and the transfer of ownership took effect in August 2007.

20In June 2009 the tax authority, on the basis of Article 18 of the Polish VAT Law in conjunction with Articles 8 and 30(1), (3) and (4) of the Polish Tax Code, ruled that Mr Macikowski was liable as the paying agent, because he had not paid the VAT on the sale of the immovable property. According to the tax authority, he ought to have issued a VAT invoice for the transaction in November 2007 and then paid the tax on behalf of the taxable supplier of the immovable property. Mr Macikowski eventually notified the tax authority in September 2009 of the tax payment he had made.

21Mr Macikowski appealed to the Director of the Tax Chamber, Gdańsk, against the decision on his liability as paying agent, after it had been confirmed notwithstanding an objection he made to the tax authority. He argued inter alia that he had not been able to dispose over the proceeds of the auction sale of the immovable property, as the proceeds had been in the court’s deposit account. So long as the plan for dividing the proceeds he had put forward at the end of October 2008 had not been finally confirmed by the court, he had not been in a position to pay the tax.

22The Naczelny Sąd Administracyjny (Supreme Administrative Court), which has since come to be hearing the dispute, doubts that the Polish provisions referred to above are compatible with EU law, and on 16 September 2013 referred the following questions to the Court for preliminary ruling, pursuant to Article 267 TFEU:

‘(1) In the light of the system of value added tax resulting from the VAT Directive, in particular Articles 9 and 193, in conjunction with Article 199(1)(g), is a provision of national law permissible, such as that in Article 18 of the Polish VAT Law, which introduces exceptions to the general rules on that tax, in particular with regard to the persons required to calculate and collect the tax, by establishing the concept of paying agent, that is to say, a person who is required, on behalf of the taxable person, to calculate the amount of tax, collect it from the taxable person, and pay it to the tax authority in good time?

(2) If Question 1 is answered in the affirmative:

In the light of the principle of proportionality, which is a general principle of EU law, is a provision of national law permissible, such as that in Article 18 of the Polish VAT Law, under which, inter alia, tax on the supply of immovable property effected through enforcement in respect of goods owned by the debtor or in his possession in breach of existing law is calculated, collected and paid by a court enforcement officer carrying out an enforcement action who, as paying agent, bears liability in the event of failure to fulfil that obligation?

In the light of Articles 206, 250 and 252 of the VAT Directive and of the principle of neutrality arising therefrom, is a provision of national law permissible, such as that in Article 18 of the Polish VAT Law, under which a paying agent as referred to in that provision is required to calculate, collect and pay, within the tax period of the taxable person, an amount of VAT on a supply, effected through enforcement, of goods owned by that taxable person or in his possession in breach of the law in force, in an amount comprising the product of the proceeds from the sale of the goods, minus VAT, and the applicable rate of that tax, with no reduction of that amount by the amount of input tax from the beginning of the tax period to the date of the collection of that tax from the taxable person?’

23In the proceedings before the Court, Mr Macikowski, the Republic of Poland and the Commission submitted written observations. The Director of the Tax Chamber, Gdańsk, the Republic of Poland and the Commission participated at the hearing on 4 September 2014.

IV – Legal analysis

24To understand the present proceedings it is necessary to distinguish between two different duties of a court enforcement officer under the Polish provisions.

25First, in the context of a compulsory sale by auction a court enforcement officer must, under Article 18 of the Polish VAT Law and Article 8 of the Polish Tax Code, calculate the amount of tax for the taxable person, collect it from the taxable person, and pay it to the tax authority within the applicable time-limit. Thus it is intended that the court enforcement officer uses the taxable person’s money to ensure that his tax debt is paid (‘duty of collection’)

26Secondly, in certain circumstances there is in addition a personal liability on the court enforcement officer for the tax. If the court enforcement officer does not fulfil his duty of collection, Article 30(1) and (3) of the Polish Tax Code require him to pay the VAT out of his own resources (‘liability’).

A – Duty of collection

27By its first question the referring court asks for clarification as to whether the provisions of the VAT Directive preclude the imposition of the duty of collection on the court enforcement officer.

1. Articles 193 and 199(1)(g) of the VAT Directive

28The referring court’s primary doubt is whether the Polish provisions in question are compatible with Articles 193 and 199(1)(g) of the VAT Directive.

29According to the basic rule laid down by Article 193 of the VAT Directive, VAT is payable by the taxable person who carries out the taxable supply of goods. However, the provision also states that the tax may be payable ‘by another person’ under Articles 194 to 199 and 202 of the VAT Directive. One of these exceptions is Article 199(1)(g) of the VAT Directive. It permits the Member States to provide that in the case of a supply of immovable property in a compulsory sale procedure the person liable for payment of VAT is the person who acquires the immovable property, if he is a taxable person.

30Mr Macikowski is of the view that Articles 193 to 205 of the VAT Directive make exhaustive provision for who must pay VAT. The Member States may only impose the obligation to pay VAT on the persons identified in those provisions. The court enforcement officer responsible for a compulsory sale by auction, however, is not within any of these provisions.

31However, this view fails to understand that it is necessary to distinguish between a person liable for payment of tax and a person such as the ‘paying agent’ under Polish law who is liable only to collect the VAT due from the person liable for payment of it. Articles 193 to 205 provide only for who is liable for payment of the tax.

32The Polish provisions imposing the duty of collection do not have the effect of making the court enforcement officer the person liable for payment of the tax. His obligation is only to pay the tax due in respect of a particular transaction by the debtor against whose assets enforcement action is being taken, using that debtor’s money. In the case of a supply of immovable property by a compulsory sale procedure the person liable for payment of the tax is still the judgment debtor, as he is the supplier — the information provided by the referring court does not suggest anything else. It follows that the Polish provisions concerning the court enforcement officer’s duty of collection do not deviate from Articles 193 and 199(1)(g) of the VAT Directive.

33Consequently, Article 193 in conjunction with Article 199(1)(g) of the VAT Directive does not preclude a national provision according to which, where there is a supply of immovable property in a compulsory sale by auction, an obligation is imposed on the court enforcement officer involved to calculate, collect and pay the VAT due on behalf of the person liable for payment of the tax.

2. Article 204 of the VAT Directive

34However, Mr Macikowski also submits that the Polish provisions in question are precluded by Article 204 of the VAT Directive, as they turn the court enforcement officer into a statutory tax representative, without this being provided for by Article 204 of the VAT Directive.

35The first subparagraph of Article 204(1) of the VAT Directive provides that where the person actually liable for payment of VAT is a taxable person who is not established in the Member State in which the VAT is due, Member States may allow that person to appoint a tax representative as the person liable for payment of the VAT. Under the second subparagraph of that provision, the person liable for payment of the tax can be required to appoint a tax representative only if there is no mutual assistance agreement with the country in which he has his seat, which is not the case within the European Union. As appears from recital 7 in the preamble to Directive 2000/65/EC, ³ on which Article 204 is based, the tax representative either acts in the stead of the non-established taxable person, or acts only as his agent. Thus, a tax representative serves as national correspondent of the tax authority, where the taxable person is resident abroad. ⁴

36Article 204 of the VAT Directive was enacted with the aim of simplifying the VAT system, in that by contrast with the previous legal position Member States are no longer able to require taxable persons resident in the internal market to appoint a tax representative. ⁵ This not least removed an obstacle to access to the market. Thus, Article 204 prevents economic operators resident within the European Union from not being able to meet their obligations to foreign tax authorities directly, and instead only through the appointment of a tax representative. ⁶

37In the present case, however, the duty of collection does not turn the court enforcement officer into a tax representative within the meaning of Article 204 of the VAT Directive. As set out above, ⁷ it neither turns him into the person liable for payment of the tax, nor treats him as a general mandatary of the taxable person. The duty of collection on the court enforcement officer relates only to an individual taxable transaction. By contrast, he does not represent the taxable person in all his VAT affairs vis-à-vis the domestic tax authorities. Moreover, it is not apparent how the court enforcement officer’s duty of collection can be contrary to the purpose of Article 204, as it does not create any obligations specifically for foreign taxable persons.

38Thus, in conclusion, Article 204 of the VAT Directive too does not preclude the court enforcement officer’s duty of collection.

3. The need for power to be conferred by EU law

39However, this does not yet demonstrate that the disputed provision is compatible with the VAT Directive. As the Commission correctly submitted, Polish law imposes VAT obligations on court enforcement officers that are not provided for in the VAT Directive.

40There are certainly cases in which the tax debt — without any special legal basis for this either existing in the VAT Directive or indeed being required — is not strictly paid by the person liable for payment of the tax. Thus, for example, agents of a legal person, or administrators in insolvency proceedings, are required to pay the tax debt of a taxable person simply because of their representation and administration respectively. There is no doubt that it is not necessary to find authority for these obligations in the VAT Directive, as they concern civil law, which is not harmonised.

41However, in the present case the court enforcement officer’s duty of collection is based on a specific provision of tax law, according to which a tax debt is to be paid in respect of a particular transaction, and not on a generally applicable right of representation. In this regard, however, the first sentence of Article 206 of the VAT Directive provides that VAT is to be paid by the person liable for payment of it. If a Member State wishes, in the context of a duty of collection such as that in the present case, to make another person liable for payment of VAT as well as the debtor, it therefore requires an appropriate power in the VAT Directive.

a) Article 273 of the VAT Directive

42Article 273 of the VAT Directive could constitute such a legal basis for the duty of collection in the present case. This provides that Member States have power to impose additional obligations over and above those laid down by the VAT Directive which they deem necessary to ensure the correct collection of VAT and to prevent evasion. According to the wording of that provision, however, the enactment of such obligations must not interfere with trade between Member States or give rise to unequal treatment as between domestic transactions and transactions carried out between Member States by taxable persons. Further, Article 273(2) provides that no additional invoicing obligations may be imposed over and above those laid down in the VAT Directive.

43The court enforcement officer’s duty of collection is an obligation within the meaning of Article 273(1) of the VAT Directive. It is intended to ensure payment of the tax on a supply of goods effected by a compulsory sale by auction. This serves the purposes specified in that provision of ensuring the correct collection of tax and the prevention of evasion, as the payment of the VAT by the person liable for payment of it, that is, by the supplier of the immovable property, is uncertain in that situation.

44It is moreover not apparent that the activity of the court enforcement officer interferes with trade between the Member States or leads to unequal treatment of domestic and international transactions. In so far as the court enforcement officer is also to be required to issue a VAT invoice in respect of the supply of goods, this is moreover not to be regarded as an unlawful additional obligation within the meaning of Article 273(2) of the VAT Directive, as the existing obligation to issue an invoice is merely passed to the court enforcement officer, and is not being supplemented by additional obligations.

45In Federation of Technological Industries and Others, the Court held in relation to the predecessor provision of Article 273 of the VAT Directive that it did not provide a basis for imposing further obligations on any person ‘who is neither liable for payment of VAT nor jointly and severally liable to pay it’ ⁸ under the directive. According to that, Article 273 of the VAT Directive could not provide a basis for imposing additional obligations on a person such as the court enforcement officer who is not a person liable for payment of the tax. In subsequent judgments, however, the Court has defined this provision’s scope more broadly. Thus, it has since assessed obligations imposed on taxable persons who are only claiming a right to an input tax deduction, but who are not the persons liable for payment of the tax on the transactions in question, against this provision. ⁹ According to recent case-law, measures which may be required of taxable persons before taking up any effective economic activity can likewise fall within Article 273. ¹⁰

46Even if one wanted to lay down a condition that only taxable persons may be made liable to obligations under Article 273, this is met in the present case, as the court enforcement officer not only has a duty of collection in relation to the tax debt of the person making the supply of immovable property, but also, according to the information given by the referring court, is himself a taxable person within the meaning of Article 9(1) of the VAT Directive, in that he makes taxable supplies consisting of the carrying out of compulsory sales by auction.

47Therefore, Article 273 of the VAT Directive is an adequate legal basis for the court enforcement officer’s duty of collection.

b) Proportionality

48However, there remains to be considered whether the provision satisfies the principle of proportionality.

49In exercising a power conferred by EU law, in accordance with the principle of proportionality, the Member States must employ means which, while enabling them effectively to attain the objective pursued by their domestic laws, are the least detrimental to the objectives and the principles laid down by the relevant EU legislation. ¹¹ To that extent measures adopted under Article 273 of the VAT Directive must not go further than is necessary to attain the objectives of ensuring the correct collection of tax and preventing evasion. ¹²

50As regards the necessity of the duty of collection, in cases of the supply of immovable property by compulsory sale by auction Member States may in principle reverse the tax debt, pursuant to Article 199(1)(g) of the VAT Directive, and thus prevent the supplier avoiding the tax debt. However, this measure is in any event not equally suitable as a means to achieving the aims pursued by the duty of collection, as the provision’s application is restricted to supplies to taxable persons.

51However, the information given by the referring court makes proportionality appear questionable. According to it, the normal performance of the court enforcement officer’s obligations is possible only in cooperation with the court having jurisdiction over the compulsory sale by auction. It must first make the proceeds available, but according to the information given by the referring court this does not always happen within the time-limit under tax law for the court enforcement officer to pay the tax. The court itself acts only according to the requirements of civil procedure law and is not required to take into account the court enforcement officer’s obligations in connection with the payment of VAT.

52The Republic of Poland emphatically disputes the exposition given by the referring court, according to which it is not always possible for the court enforcement officer to fulfil his obligations in time. However, it is not the Court’s task to resolve this contradiction, which relates to national law. The Court must take account, under the division of jurisdiction between the judicature of the European Union and the national courts, of the factual and legal context, as described in the order for reference, in which the questions put to it are set. ¹³ Having regards to the national court’s exposition, the imposition of the duty of collection can in any event be regarded as proportionate only to the extent that it is objectively possible for a court enforcement officer acting with reasonable care actually to be able to comply with his obligations. This is not the case if he is prevented from doing so by the act of a third party, such as the court, over which he has no influence. An obligation that is impossible to fulfil cannot be regarded as a suitable measure for achieving the aims it pursues.

53Accordingly, on the basis of Article 273 of the VAT Directive Member States may impose a duty of collection such as that in the present case in so far as a court enforcement officer acting with reasonable care is actually able to perform that duty.

4. Answer to the first question referred

54It follows that the answer to the first question is that the VAT Directive does not preclude a domestic provision which provides that in the case of a supply of immovable property by means of a compulsory sale by auction an obligation is imposed on the court enforcement officer involved in the sale to calculate, collect and pay the VAT due, to the extent that the court enforcement officer is not prevented from fulfilling this obligation by the act of a third party over which he has no influence.

B – Liability

55The second question (Question 2.1) concerns the liability of the court enforcement officer. If he does not fulfil his duty of collection, he is liable with his entire assets for payment of the tax. In essence, the referring court asks whether that provision satisfies the requirements of the principle of proportionality.

1. Legal basis

56In order to answer this question, it is necessary first to elucidate whether the liability imposed on the court enforcement officer is covered by a legal basis found within the VAT Directive.

57The Republic of Poland and the Commission again regard Article 273 of the VAT Directive as the legal basis for this liability.

58However, liability of a third party for another’s tax debt is governed by Article 205 of the VAT Directive. According to it, Member States, in particular in the present situation falling within Article 193, ‘may provide that a person other than the person liable for payment of VAT is to be held jointly and severally liable for payment of VAT’. Precisely this is the case if the court enforcement officer is liable with his own assets for the tax debt of the debtor whose assets are being taken in execution, where he does not perform his duty of collection.

59At the hearing the Republic of Poland and the Commission submitted, on the other hand, that Article 205 of the VAT Directive did not apply, as this was not a situation in which the tax authority could pursue the court enforcement officer and the person liable for payment of the tax (that is, the taxable person who makes the supply) on an alternative basis. If the tax is not collected or paid within the applicable time-limit, the tax authority can pursue only the court enforcement officer.

60This submission indicates that responsibility for the tax debt is transferred to the court enforcement officer alone. If this were the case, however, then Polish law would be in breach of Articles 193 to 205 of the VAT Directive. These provisions make exhaustive provision as regards who is liable for payment of the tax vis-à-vis the tax authority, and do not provide for any case in which a supplier is subsequently freed from his tax debt under Article 193 of the VAT Directive because a third party takes over the liability in an individual case. In the present case, therefore, the supplier may not be freed from his responsibility for the tax debt.

61However, from the information provided by the referring court it does not by any means appear that under Polish law the tax debt due by the supplier is extinguished where liability is imposed on the court enforcement officer. Therefore, where the facts giving rise to that liability occur, the court enforcement officer is consequently to be regarded rather as an additional debtor for the tax.

62Thus, in principle, the Polish provisions concerning liability of the court enforcement officer are authorised by Article 205 of the VAT Directive.

2. Proportionality

63In exercising their power under Article 205 of the VAT Directive Member States are, however, required in particular to observe the principle of proportionality. It follows that, when enacting measures on the basis of that provision for the purpose of preserving the rights of the public exchequer as effectively as possible, they must not go beyond what is necessary to achieve that purpose. ¹⁴ To impose liability independently of fault falls foul of this framework, ¹⁵ because according to the case-law of the Court it is clearly disproportionate to hold a person unconditionally liable for the shortfall in tax revenue caused by acts of a third party over which he has no influence whatsoever. ¹⁶

64According to the submissions of the Republic of Poland, a court enforcement officer is a public official and is therefore a person in whom public trust is placed. He may therefore rightly be expected to exercise a particular degree of care when he collects tax for the tax authorities in the course of his activities. This also justifies imposing high requirements as to the court enforcement officer’s responsibility and, in case of breach of his obligations, liability with his own assets.

65As, however, has already been explained above, ¹⁷ according to the referring court it is not impossible that a court enforcement officer is prevented by circumstances beyond his control from ensuring the punctual payment of tax. Liability can arise even in such cases. In that way, the court enforcement officer has to bear another person’s obligation without any fault of his own. However, it is possible to regard the disputed Polish provisions as proportionate only if the court enforcement officer’s liability is connected to some personally blameworthy conduct of his.

3. Answer to the second question

66For those reasons, the answer to the second question is that the principle of proportionality does not preclude a domestic provision which provides that a court enforcement officer who is obliged to calculate, collect and pay the tax on a supply of immovable property by a compulsory sale by auction is, in case of failure in this duty, liable with his entire assets, unless the failure was caused by the act of a third party on which he had no influence.

C – Taking input tax into account

67Finally, by its third question (Question 2.2) the referring court seeks clarification as to whether the VAT Directive precludes imposing the duty of collection on a court enforcement officer where he is required to pay the tax on the supply of immovable property without being able to deduct the amount of input tax incurred by the supplier from the beginning of the tax period to the date of the collection of that tax.

68As the referring court explains, it might be incompatible with Articles 206, 250 and 252 of the VAT Directive, and with the principle of fiscal neutrality, for input tax not to be taken into account.

69It follows from Article 206 of the VAT Directive that a person liable for payment of the tax when submitting the tax return — which is provided for in more detail by Articles 250 and 252 — must pay only the taxable amount as reduced by input tax. After the court enforcement officer pays a third party’s tax debt, it must in principle be equally possible for him to deduct input tax from the amount of tax due by him. It might be that, in effect, he would have to make a lower payment, or indeed no payment at all, and could thus reduce his liability by a corresponding amount.

70The second sentence of Article 206 of the VAT Directive provides that Member States may, however, require interim payments of VAT to be made. In this regard I share the Republic of Poland’s view that the tax paid by the court enforcement officer for a single transaction may be regarded as such an interim payment. This interim payment may then be taken into account in the tax return of the supplier for the relevant tax period.

71In so far as Mr Macikowski argues against this that Member States are not free to establish the conditions for interim payments, and in that regard cites the judgment in Balocchi, ¹⁸ his argument should not be adopted. The application of the national provisions in question in that case could have given rise to a breach of EU law consisting in an obligation on taxable persons to pay VAT on future transactions. ¹⁹ In the present case, however, VAT is paid on the basis of a transaction which has already taken place, namely the supply of immovable property.

72Moreover, not taking input tax into account is not incompatible with the principle of fiscal neutrality. According to this principle, the deduction scheme is meant to relieve every operator entirely of the burden of the VAT payable or paid in the course of his economic activities. ²⁰ As the Court has clarified, however, this is an aid to interpretation which does not have any precedence over the wording of the law. ²¹ Yet the power of Member States to require interim payments is expressly conferred by the second sentence of Article 206 of the VAT Directive.

73Accordingly, the answer to the third question is that Articles 206, 250 and 252 of the VAT Directive and the principle of fiscal neutrality do not preclude a national provision under which a court enforcement officer who is required to calculate, collect and pay the tax on a supply of immovable property made by means of a compulsory sale by auction has to pay that tax without deduction of the input tax incurred by the person liable for payment of the tax from the beginning of the tax period.

V – Conclusion

Conclusion

74In view of the foregoing, I propose that the Court reply as follows to the questions referred for a preliminary ruling by the Naczelny Sąd Administracyjny:

Council Directive 2006/112/EC of 28 November 2006 on the harmonised system of value added tax does not preclude a national provision under which, in the case of a supply of immovable property by means of a compulsory sale by auction, an obligation is imposed on the court enforcement officer involved in the sale to calculate, collect and pay the VAT due, without taking into account the input tax incurred by the person liable for payment of the tax from the beginning of the tax period, and, in the event of failure in this duty, he is liable with his entire assets, to the extent that the court enforcement officer is not prevented from fulfilling these obligations by the act of a third party over which he has no influence.

¹ Original language: German.

² 2002 OJ L 347, p. 1.

³ Council Directive 2000/65/EC of 17 October 2000 amending Directive 77/388/EEC as regards the determination of the person liable for payment of value added tax, OJ 2000 L 269, p. 44.

⁴ See judgment in Athesia Druck (C‑1/08, EU:C:2009:108, paragraph 34), on Article 2(3) of Thirteenth Council Directive 86/560/EEC of 17 November 1986 on the harmonisation of the laws of the Member States relating to turnover taxes — Arrangements for the refund of value added tax to taxable persons not established in Community (OJ 1986 L 326, p. 40).

⁵ See recitals 4 and 7 in the preamble to Directive 2000/65/EC (cited in note 3).

⁶ To this effect, see judgments in Commission v Finland (C‑249/05, EU:C:2006:411, paragraph 46), and Commission v France (C‑624/10, EU:C:2011:849, paragraph 36).

⁷ See point 32 above.

⁸ See Federation of Technological Industries and Others (C‑384/04, EU:C:2006:309, paragraph 44), in relation to Article 22(8) 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).

⁹ See judgments in Nidera Handelscompagnie (C‑385/09, EU:C:2010:627, paragraphs 49 to 51), Klub (C‑153/11, EU:C:2012:163, paragraphs 34, 50 and 51), and Mahag ében and Dávid (C‑80/11 and C‑142/11, EU:C:2012:373, paragraphs 57 to 59). See also the earlier judgment in Gabalfrisa and Others (C‑110/98 to C‑147/98, EU:C:2000:145, paragraphs 52 to 54).

¹⁰ See judgment in Ablessio (C‑527/11, EU:C:2013:168, paragraphs 29 and 30).

¹¹ See judgments in Molenheide and Others (C‑286/94, C‑340/95, C‑401/95 and C‑47/96, EU:C:1997:623, paragraph 46), Teleos and Others (C‑409/04, EU:C:2007:548, paragraph 52), X (C‑84/09, EU:C:2010:693, paragraph 36) and BDV Hungary Trading (C‑563/12, EU:C:2013:854, paragraph 30).

¹² See judgments in Gabalfrisa and Others (C‑110/98 to C‑147/98, EU:C:2000:145, paragraph 52), Profaktor Kulesza, Frankowski, Jóźwiak, Orłowski (C‑188/09, EU:C:2010:454, paragraph 26), Ablessio (C‑527/11, EU:C:2013:168, paragraph 30) and Maks Pen (C‑18/13, EU:C:2014:69, paragraph 43).

¹³ See judgment in Oberbank and Others (C‑217/13 and C‑218/13, EU:C:2014:2012, paragraph 52 and the case-law cited).

¹⁴ See judgments in Federation of Technological Industries and Others (C‑384/04, EU:C:2006:309, paragraphs 29 and 30) and Vlaamse Oliemaatschappij (C‑499/10, EU:C:2011:871, paragraphs 20 to 22).

¹⁵ See judgments in Federation of Technological Industries and Others (C‑384/04, EU:C:2006:309, paragraph 32) and Mahag ében and Dávid (C‑80/11 and C‑142/11, EU:C:2012:373, paragraph 48).

¹⁶ See judgment in Vlaamse Oliemaatschappij (C‑499/10, EU:C:2011:871, paragraph 24).

¹⁷ See point 51 above.

¹⁸ C‑10/92, EU:C:1993:846.

¹⁹ Judgment in Balocchi (C‑10/92, EU:C:1993:846, paragraph 27).

²⁰ See judgments in Zimmermann (C‑174/11, EU:C:2012:716, paragraph 47) and NCC Construction Danmark (C‑174/08, EU:C:2009:669, paragraph 27 and the case-law cited).

²¹ Judgment in Deutsche Bank (C‑44/11, EU:C:2012:484, paragraph 45).