The European Court of Justice (ECJ) has declared in a recent case that when checking VAT transactions, the tax authority cannot ignore examining the full budgetary impact. Thus it is not acceptable for the authorities to deny the right of VAT deduction to a taxpayer without allowing the other taxpayer to accordingly reclaim the VAT that it paid. Furthermore, the court also found it unacceptable for the tax authority to base a fine only on the amount of the VAT deducted unlawfully without examining the tax shortfall actually caused. The ruling can be considered as another important step towards the creation of a fair VAT system.
Companies are faced with countless situations where, for reasons beyond their control, they are unable to collect the money owed to them, including its VAT part. In such cases the tax authority often refuses to allow the reclaim of the lost VAT even where this would not incur a loss for the budget. Based on recent judgements by the European Court of Justice (ECJ), however, the VAT should be recoverable in many cases of this kind.
Due to a seemingly trivial error, a series of NAV decisions are being overturned in court: a good many of them don’t contain the proper signature. This procedural error, however, could be useful not only in ongoing lawsuits, but possibly in past, closed procedures too – hundreds of businesses could claw back the tax forints they thought were lost for good.
Since the start of the year there have been new laws in place regulating tax audits and tax lawsuits. The stakes are pretty high: the National Tax and Customs Administration (NAV) conducts almost 30,000 audits annually, assessing tax deficiencies of about HUF 500 billion and imposing fines of almost the same amount. Therefore it is important to know the rights taxpayers have under the new rules and the most efficient ways to fight NAV.
Winning a tax lawsuit is a difficult and lengthy process, and often there are no guarantees of victory even when you’re totally confident that you correctly accounted for every transaction. So it’s worth paying particular attention to the opportunities for triumphing over the tax authority relatively easily and without any complications. What is more, recent case law has expanded the range of these options.
In 2009 the Supreme Court made it clear that the VAT on public-purpose investments related to property developments is deductible if it would not be possible to implement the development without such investment. Recently, however, some alarm was unexpectedly caused by the preliminary opinion of the advocate general of the European Court of Justice (ECJ) in a similar, Bulgarian case, which recommended prohibiting the tax deduction right. Although the ECJ’s judgement published in the middle of last week did not follow the advocate general’s opinion, it did make exercising the deduction right subject to some strict conditions.
New laws taking effect on 1 January next year will transform the tax audit procedure and the way tax lawsuits unfold. While some of the amendments are business-friendly, they also conceal a number of traps that are clearly detrimental to taxpayers’ interests. For example, the rights of taxpayers to defend themselves against the tax authority, and to make use of experts, will be compromised.
The law is constantly in flux. While many people may find this intimidating, for us it’s precisely what makes it so exciting. We’d like to share this attitude with businesspeople and managers, and with those who just have an interest in business law, in the form of a regularly updated blog that discusses the latest tax law and commercial law issues in an accessible style. Feel free to send your questions and suggestions for topics you’d like us to cover to firstname.lastname@example.org.