Derecho a la deducción y exención del IVA y fraude intracomunitario: jurisprudencia reciente del Tribunal de Justicia de la Comunidad Europea

Abstract

The cause of the fraud in the VAT is the principle of taxation at destination, initially conceived with a temporary or transitory, but perpetuated in time and also widespread since January 1, 2007 also for the provision of services.VA.
The intra-Community fraud can occur in intra-Community supplies, abusing the tax exemption, or in-Community acquisitions-called carousel fraud, forcing the right to deduct tax. Pending the institute the VAT taxation at source, initially planned, will continue to exist serious problems of fraud.
As for the exemption, the Community Court declares that once the seller has fulfilled its obligations relating to evidence derived from national law and practice, can not be held liable for VAT in the Member State where the acquirer delivery has not fulfilled its contractual obligation to dispatch or transport the good in question outside that State. In such a case it is the purchaser who should be held liable for VAT in the Member State of supply.
However, the ECJ states that can not be granted exemption from VAT on intra-Community transaction that the seller knew or should have known that the transaction was involved in a fraud committed by the purchaser and not taken all reasonable measures in their power to prevent it.
Regarding the deduction, the ECJ has consistently held that the right to deduct VAT is a fundamental principle of the common system of VAT. In particular, the Luxembourg Court considers it contrary to the VAT Directive refusal by the tax authority of the deductibility of taxpayers who took reasonable steps to verify the existence of a VAT fraud and taxpayers who did not have evidence that allowed suspected irregularities or fraud by the vendor, biller.