A French court has referred to the EUCJ for a preliminary ruling on the conditions whereby a VAT refund application can be regularised. 

Further to the opinion of the French supreme Court (Conseil d’Etat, 8e-3e ch. 18-10-2017 no. 412016 and 412053), the court of Montreuil decided to refer to the European Union Court of Justice (EUCJ) on the question of requesting additional information by using electronic mail as stipulated by Article 20 of Directive 2008/9/EC, a procedure Tax authorities may use when they consider that they are not in possession of all the information necessary to decide on all or part of a VAT refund application.

Two questions needed to be addressed in this litigation in which we assisted the plaintiff.

► The first involves the method of proof to be used where there is disagreement between the tax authority and the taxable person about whether requests for information submitted by electronic means were actually received. Following the aforementioned opinion from the “Conseil d’Etat”, it has been ruled that the email monitoring report produced by the tax authority’s computer server recording delivery to the server hosting the taxable person’s electronic mail address did establish that the request for information was sent and permitted the presumption that it had been received by the recipient. The taxable person must therefore be particularly careful to communicate a correct email address when submitting a VAT refund application, and take all the technical precautions necessary to ensure electronic mail is properly received.

► The second question relates to the consequences of failing to meet the one-month deadline stipulated in order to answer to the tax authority’s request for information. The applicant company argued that, if the applicable provisions were silent on this point, the French tax authorities could not draw the conclusion that it was entitled to rule the refund application as out of time thereby making it impossible to rectify the procedural defect before a court, as doing so would fail to recognise the principles of proportionality and VAT neutrality. Taking the view, as suggested by the “Conseil d’Etat”, that this question presented a serious difficulty, the local court decided to refer it to the EUCJ for a preliminary ruling.

The EUCJ is thus to answer the question of whether the provisions of the article 20 of Directive 2008/9/EC should be construed in such a way that a taxable person having fail to comply with  the deadline for responding to a request for information issued by the tax authority can, under the right of appeal stipulated in Article 23 of said Directive and in light of the principles of proportionality and VAT neutrality, still rectify this procedural defect before the tax division of the administration court.