Academica Science Journal Vol. XXX, No.

X – XXXX
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FISCAL ADJUSTMENTS TO THE JURISPRUDENCE OF THE EUROPEAN

UNION

Mircea SIMIONESCU,
“Dimitrie Cantemir” University of Tg. Mureş, no. 3-5 Bodoni Sandor street , Tg. Mureş, România.
Radu Alin MORUȚAN,
University of Oradea, no.1 Universităţii street, Oradea, Romania.

“If you have ten thousand regulations you destroy all respect for the law.” (Winston Churchill).

Abstract:
We have recently completed a process of legislative changes regarding fiscality in Romania. The new Fiscal
Code (rewritten) has already been going through the application procedure. Although, quite recently, at the
highest governmental level, a decision of the European Court of Justice (ECJ) was invoked in a fiscal
litigation, during the drafting of the new fiscal policy, we notice that in many respects this has not been
harmonized, not even in this context, with the European legislation and the decisions of the European Court
of justice, which were compulsory.

Key words: fiscal policy, harmonization, jurisprudence

INTRODUCTION
“Government's view of the economy could be summed up in a few short phrases: If it moves, tax it. If it
keeps moving, regulate it. And if it stops moving, subsidize it.” (Ronald Reagan).

The Romanian legislative changes must be harmonized with the European legislation on VAT and other tax
liabilities. In addition to Directive 2006/112 / EU Council of 28 November 2006 (implemented in the national
legislation) on the common system of value added tax, published in the Official Journal of the European
Communities -OJEC no. L 347 of 11 December 2006 which represents the republication of the 6 th Directive,
namely Directive 77/388 / EC of 17 May 1977 concerning the tax on turnover - common system of value
added tax: the uniform basis of assessment, it is imperative that the Member States (including, of course,
Romania) apply the regulations of the European Court of Justice which are mandatory, even if not
specifically mentioned in the legislation.
In this context, we have selected and presented below some cases solved by the European Court of Justice
in favour of the legal entities that attacked the resolutions of the fiscal authorities on different test cases (sale
of goods, consulting services, investments) from Romania, Bulgaria and Belgium:
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1. Cause C-183/14 (litigation between: Salomie and Oltean on the one hand, the General Department of
Public Finances Cluj, on the other hand), regarding the application of VAt to the sale of some goods. .
2. Cause C-463/14 (litigation between Asparuhovo Lake Investment Company OOD and Direktor na
Direktsia „Obzhalvane i danachno-osiguritelna praktika” Varna pri Tsentralno upravlenie na Natsionalnata
agentsia za prihodite), regarding consultancy contracts.
3. Cause C-37/95 (litigation between Belgische Staat v. Gent Coal Terminal NV, C-37/95 Belgische Staat and
Gent Coal Terminal NV, C-110/94 Intercommunale voor zeewaterrontzilting (INZO) v. Belgian State and C-
268/83 D.A. Rompelman and E.A. Rompelman – Van Deelen v. Minister van Financien), regarding
investments.
4. Cause C-110/94 (litigation between Intercommunale voor zeewaterrontzilting (INZO) and the Belgian
State), regarding investments.
5. Cause C-268/83 (litigation between D.A. Rompelman and E.A. Rompelman – Van Deelen and Minister
van Financien) regarding investments.

We will briefly and selectively present and develop the problematic of these causes, as it follows:

1. THE RIGHT TO DEDUCE THE VALUE ADDED TAX (VAT) RELATED TO THE INVESTMENTS
MADE WITH THE PURPOSE OF ONGOING TAXABLE OPERATIONS
"The politicians say 'we' can't afford a tax cut. Maybe we can't afford the politicians." (Steve Forbes).

According to the legal provisions, any taxpayer may deduct the VAT paid on the purchase of goods or
services, if those goods and services are used to carry out economic activities. Theoretically, the situation
seems quite simple, but it gets more complicated in the case of the companies which have made their
expenditures before the date of registration for VAT or have reached complex investments objectives and will
record revenue only in following years, if never.
The VAT legislation contains provisions under which a taxpayer may deduct the VAT on the expenses
incurred prior to registration for VAT purposes if it can demonstrate that they were done with the intention to
carry out economic activities in the future. The deduction is possible by the entry of the amount in question in
the VAT returns which will be filed after the date of registration. The right to deduct must be exercised within
a period not exceeding 3 years from the date of entering the costs, the term extending up to 5 years if the tax
authorities approve the tax deduction.
How is the intention to carry out economic activities in the future being evaluated? The legislation is quite
incomplete in this regard and does not mention specifically the documents that prove this intention, but refers
to a number of objective factors such as the fact that it engages costs and / or the fact that preparatory
investments are made, necessary to the initiation of the economic activity. The experience of the recent
years has taught us, however, that when they have to justify expenses or deduct VAT, the companies must
have a significant number of documents in order to forestall any objections raised by the fiscal authorities. It
would be hard and we do not even intend in this context to enumerate the necessary documents, but one
always has to bear in mind the character of the work which is about to be done.
The intention of carrying out any economic activity must be also proved in the case of companies that have
registered for VAT from the beginning, but make complex investments for a longer period of time and that will
generate revenues only after the investment will have been completed, or in some cases they will not even
get to realize revenues.
More specifically, the fact that the taxpayer has demonstrated his intention does not exclude the right to
request further evidence regarding the outcome of his prior actions. Hence the authorities' practice to ask the
taxpayer to demonstrate, by presenting preliminary contracts, proposals, studies and reports of market
research, operational studies, etc., that the goods or services which were granted the right to deduct VAT are
/ will actually be used for economic purposes.
The question that is raised, is related to what is going on in the case when after having committed itself to
certain expense, the company will never be able to realize those revenues. A situation like this can happen to
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companies operating in the mining and petroleum industries, which by the time they obtain any income, they
have already undertaken significant exploitation costs. Such exploitation activities are considered as
operating activities prior to the economic activities for which the right to deduct VAT is given, once again, to
the extent that the taxpayer can prove the intention of carrying out economic activities.
As we are well aware of the authorities’ reluctance to grant the right to deduct VAT, motivating that the right to
deduct VAT may be exercised if it is directly related to the generation of revenue, it is advisable to seek help
in the European legislation and jurisprudence, applicable in this matter.
The practice has prevailed at the European Court of Justice which has considered in many cases (such as
C-37/95 Belgian State v. Ghent Coal Terminal NV, C-110/94 Intercommunale voor zeewaterrontzilting (INZO)
v. Belgian State and C-268/83 DA Rompelman and EA Rompelman - Van Deelen v. Minister van Financiën),
that even from the moment of the first investment, the taxable person shall initiate an economic activity.
Thus, the Court's decisions in these cases were that the VAT paid for actions prior to an economic activity
may be deducted by the taxable person, even if they have not earned any revenues yet.
If we consider that the decisions of the European Court of Justice are integral with the European Directive for
VAT which are binding on all courts and authorities of the Member States, the company undertaking any
expenses can prevail in exercising its right to deduct the VAT.

2. THE RIGHT TO DEDUCE THE VAT RELATED TO THE ACQUISITIONS MADE WHEN
CARRYING ON TAXABLE TRANSACTIONS
„ Tax reform means, 'Don't tax you, don't tax me. Tax that fellow behind the tree.' ” (Russell B. Long).

Quite recently, the Court of Justice of the European Union, passed a decision in Case C-183/14 thus
reiterating that the right to deduct is a “fundamental principle of the common system of VAT which cannot be
limited and must be exercised immediately to all the taxes applied to any operation carried on in advance,
this scheme aiming to completely relieve the entrepreneur of the burden of VAT payable or paid in all its
economic operations.” This principle derives from the fundamental principle of neutrality of VAT which
requires that the tax deduction is granted if the substantial requirements were satisfied, even if certain formal
requirements were omitted. In the context of this new decision of ECJ changes are needed in the national
fiscal legislation on VAT
If a person becomes liable to VAT (by choice or by exceeding the exemption threshold), it has the right to
deduct VAT on the purchases made for the purposes of taxable transactions carried out in the last 5 years
preceding the filing of VAT, even if on the bills related to these acquisitions there is not registered the VAT
code of the person concerned. So far, everything is in line with the spirit and letter of the European
legislation. However, national legislation provides an additional element: deductible VAT shall be recorded in
the first VAT return submitted after the date of registration for VAT purposes. This condition required by the
law (by the methodological norms) was the generator of a series of problems in practice, especially in
situations where, following an audit, it was found that the person checked had exceeded for quite a long
time, by the operations carried out, the exemption threshold of VAT and, consequently, should have already
been registered for VAT payment. The inspection bodies have established that it was the correct date of
registration for VAT purposes and VAT was recalculated accordingly, applying the quotas from the valid
legislation at that time (depending on the date on which registration would have been mandatory) as well as
interest and late payment penalties. However, for the taxable operations as determined by the fiscal
authorities, in most of the cases the person concerned has completed acquisitions, for which, as a general
rule, would be entitled to exercise the right of deduction. Given the above-mentioned statutory provision (the
deductible VAT from the period prior to registration for VAT purposes is part of the first tax return which is
filed after registration), this person did not benefit from the fact that the VAT related to purchases should have
been deductible. Therefore, there was a discrepancy in time between the amount owed as collected VAT
established by the fiscal inspection and the amount of deductible VAT that would be recognized only after
submitting the return. Given the fact that between the two moments several years have passed, in most of
the cases, we reach a situation in which the person concerned has to pay a considerably higher collected
VAT (together with interest and penalties), but at the same time is not entitled to being granted as deductible
the tax for the purchases made for carrying out exactly the same taxable transactions that generated the
registration requirement. It is true that tax law penalizes the registration in time for VAT purposes, but the
penalty is given by the application of interest and delay penalties. The increase in the basis for applying
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sanctions, by not allowing deduction simultaneously with the moment when VAT should have been collected,
it is virtually a double penalty and it is completely disproportionate.
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In this context, the European Court of Justice, ruled by the decision given in Case C- 183/2014 - Radu Florin
Salomie and Nicolae Vasile Oltean vs. the General Department of Public Finance Cluj. The request
for a preliminary ruling regarded the interpretation of the principles of legal security and the
protection of legitimate expectations, as well as the Articles 167,168,179 and 213 of the Directive
2006/112 / EC on the value added tax. This reference was made in the litigation between Mr Salomie
and Oltean, on the one hand and the General Department of Public Finance Cluj on the other hand,
regarding the application of VAT to property sales carried out by Mr. Salomie and Oltean in 2009.
Basically, in 2007, the two in association with 5 other individuals, built on land which they owned, a number
of four buildings with a total of 132 apartments. In 2008 and 2009, out of the 132 apartments built,
122 were sold as well as a total of 23 parking spaces, without these sales to be subject to VAT. In
2010, during a fiscal audit carried out by the fiscal authorities, they noted that the operations
conducted by the two represented a continuous economic activity and that, consequently, they
should have been subjected to VAT since 2008 (1 st October), because, since August 2008, the
turnover resulting from these activities exceeded the threshold of 35,000 Euros, under which any
economic activities were, at that time, exempt from VAT in Romania. The problem occurred when, in
the act of taxation, the fiscal authorities did not take into account the amount of deductible VAT
related to the purchases made by the two. The dispute was brought before the Court of Appeal from
Cluj which suspended any proceedings and decided to refer it to the ECJ, by addressing the
following questions:
a.) a legal entity who enters a contract of association with other individuals, association without a legal
personality which has not been declared and recorded in terms of taxation, in order to achieve a
future asset (building), on land that is part of the personal property of some contractors, may be
considered (based on the circumstances of the main proceedings) a taxable person for VAT
purposes under Article 9 (1) of Directive [2006/112] if initially the delivery of the buildings erected on
the land belonging to the personal assets of some contractors were treated by [the fiscal
administration] from the point of view of the fiscal legislation as sales which fall within the
administration of the private property of these persons?
b.) reported to the circumstances of the main litigation, the principle of legal certainty, the principle of
legitimate expectations and other general principles applicable to VAT as drawn from Directive
2006/112 must be interpreted as precluding a national practice under which [ the fiscal administration],
after having initially charged the individual with the income tax from the transfer of related personal
property, without a substantial legislative amendment of primary law, based on the same facts, after a
period of two years shall reconsider its position and shall qualify the same transactions as economic
activities subject to VAT, calculating retroactive accessories?
c.) if the provisions of Articles 167 168 and 213 of Directive [2006/112], analyzed in the view of the principle
of fiscal neutrality, must be interpreted as precluding, in the circumstances of the main proceedings,
[the fiscal administration] could refuse a taxable person the right to deduct [the payable or paid VTA]
for the goods and services used for taxable transactions simply because it was not registered for
VAT tax at the time when such services have been rendered?
d.) reported to the circumstances of the main proceedings, the provisions of Article 179 of Directive
[2006/112] must be interpreted as precluding the national legislation which imposes on the taxable
person the application of the special exemption regime, and who requested late registration for VAT,
the obligation to pay the tax which should have been collected, without the power to decrease the
amount of the deductible tax for a rye fiscal period, the right to deduct being exercised afterwards by
the return of the tax filed after the registration of the taxable persons for VAT purposes, with possible
consequences on the accessories calculations?
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For the first two questions above, after studying the provisions of national law, the European Court of Justice
has gripped with the fact that it cannot be reasonably argued that the provisions of national law do
not establish clearly and precisely enough that the delivery of a building or a part of it and the land
on which it is built can in some cases be subject to VAT ". The European Court of Justice considers
in this respect that the fiscal authorities’ practice of reclassifying, within the limitation period, a certain
operation as an economic activity subject to VAT, does not violate the principle of legal security.
Similarly, with regard to the principle of legitimate expectations (the right of every litigant to entertain
reasonable expectations by a state authority’s precise assurances on a particular issue) is not
breached in this case subjected to trial, as is clear from the documentation that the administrative
practice of the fiscal authorities in Romania was not likely to create such conditions / assurances in
the calculation of the accessories (interest and late penalties) but they can be applied with the
principle of proportionality; they do not have to be excessive in the relation to the seriousness with
which the obligations have been infringed by the taxpayer.
If the first two questions were clarified by the European Court of Justice according to the practice and the
way of working of the fiscal authorities of Romania, it was not the same case for questions 3 and 4,
which the Court has analyzed altogether.
The Court notes, in line with its consistent practice, that the right to deduct is a "fundamental principle of the
common system of VAT which cannot be limited and must be exercised immediately in respect of all
taxes charged on transactions related to inputs, the scheme aiming to completely release the
entrepreneur from the charge of payable or paid VAT in all its business operations.”
This principle derives from the fundamental principle of neutrality of VAT which requires that the deduction
should be allowed if the substantial requirements were satisfied, even if certain formal requirements
were omitted accordingly "if the tax authority has the necessary information to establish that the
substantial requirements are satisfied, it cannot impose, in relation to the right of a taxable person to
deduct that tax, additional conditions which may have the effect of annihilating this right”.
THIS INDICATES THAT A TAXABLE PERSON FOR VAT PURPOSES CANNOT BE PREVENTED FROM
EXERCISING THEIR RIGHT OF DEDUCTION ON THE GROUND THAT IT WOULD NOT BE
REGISTERED FOR VAT PURPOSES BEFORE USING ASSETS ACQUIRED IN ITS WORK. NO
MEASURE TAKEN BY A MEMBER STATE TO ENSURE SMOOTH AND PROPER COLLECTION
OF VAT OR TO PREVENT OR COMBAT TAX EVASION MUST, UNDER ANY CIRCUMSTANCES
"GO BEYOND WHAT IS NECESSARY TO ACHIEVE THOSE OBJECTIVES OR TO QUESTION
THE NEUTRALITY OF VAT '. ACCORDING TO THE COURT, " PUNISHING THE FAILURE TO
COMPLY WITH THE ACCOUNTING OBLIGATIONS OR THE OBLIGATIONS REGARDING THE
STATEMENTS, BY DENYING THE RIGHT TO DEDUCT, OBVIOUSLY GOES BEYOND WHAT IS
NECESSARY TO ACHIEVE THE OBJECTIVE OF ENSURING PROPER PERFORMANCE OF
THESE OBLIGATIONS”.
Given the above considerations, the Court concluded that "the postponement of the right to deduct VAT until
the submission of a first tax return by the taxable person for the simple reason that they were not
registered for VAT purposes when they conducted operations being subject to VAT, the latter having
also to pay the related tax, exceeds what is necessary to ensure the correct collection of tax and
prevention of evasion ". Directive 2006/112 / EC precludes the national legislation according to which
the right to deduct VAT is denied to the taxable person, who in return must pay a tax which should
have been charged, simply because the person was not registered for VAT purposes when s/he billed
these operations.
After the presentation of the above mentioned cases, returning to the Fiscal Code in Romania and in
particular to its enforcement rules, we find that they contain provisions contrary to the whole argumentation
from above.
In other words, if today during an audit, a taxpayer is faced with a situation similar to the one described
above, the taxpayer can and should rely on Case C-183/14.
What is equally important is that, in addition to very many causes that cut the right to deduct the VAT, Case
C-183/14 also resumes and details the principle of neutrality as a fundamental principle of VAT, which cannot
be contained and which is immediately applied to all the taxes charged on transactions relating to prior
inputs, this scheme aiming to completely relieve the entrepreneur from the burden of payable or paid VAT in
all the economic operations.
Given the above aspects, perhaps with the future new Fiscal Code, we can only hope that, in the light of the
extended law cases of the European Court of Justice, the fiscal authorities in Romania will begin to treat the
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right to deduct VAT as a fundamental right of every taxable person and the principle of neutrality as a
fundament for the VAT system.

3. THE DEDUCTIBILITY RIGHT OF THE EXPENDITURE PROVISION OF LEGAL,

COMMERCIAL AND FINANCIAL SERVICES
„Man- a bizarre being. He works harder and harder for the privilege of being allowed to pay higher and
higher taxes.” (George Mikes).

Case C-463/14 (litigation between Asparuhovo Lake Investment Company OOD - hereinafter referred to as
beneficiary and Direktor na Direktsia "Obzhalvane and danachno-osiguritelna praktika" Varna pri Tsentralno
upravlenie na Natsionalna agentsia za prihodite), on contracts for consultancy, aimed at subscription
contracts covering advisory services with four companies (the providers) in the areas of financing
companies, commercial development, legal services, respectively, in the field of information security
services. All these consulting companies were represented by the same person. Under those contracts,
providers committed themselves to the following obligations:
- to be available to the beneficiary for consultancy, meetings and commitments, every working day
between the hours of 9-18 and, if necessary, over the working hours, including on Sundays and
public holidays;
- Where appropriate, during the necessary time, to ensure for the beneficiary/ or a third party who has
links with the latter, the physical presence of a competent person, including over the working hours,
on Sundays and holidays;
- to obtain the necessary documentation and to exchange it between the parties thereto, as well as
the information necessary to ensure the most effective and complete protection possible of the
beneficiary’s interests, as well
- to submit to the beneficiary in due time for consulting, negotiating and signing, the necessary
documentation regarding the protection of his/her interests.
As consideration, the beneficiary has committed to pay the provider a weekly salary, paid every Monday of
the week following the one for whom the remuneration is payable. The beneficiary deducted the VAT shown
on invoices issued by the service providers.
The beneficiary has been the subject of a fiscal audit for the period between August and October 2011.
During this inspection, the fiscal administration found that the invoices were issued within the period
specified in the contracts, properly accounted for, in the books of providers as well as in those of the
beneficiary and that they been declared for VAT. The tax also showed that the invoices issued by suppliers
were honoured by payments made through the bank. It was stated, moreover, that the providers lacked
sufficient qualified personnel to perform the agreed services.
Regarding the modalities for providing these services, the providers stated that the parties did not intend to
formally establish and document the command and delivery of those services. Tasks and current issues were
discussed at meetings, by telephone or by e-mail. Specifically the people responsible for providing the
services stated that the person responsible for communicating with the client ascribed ,by means of
electronic communication, the various tasks to be performed for the beneficiary.
The fiscal authorities considered that there was not presented any evidence concerning the type, the quantity
and the nature of the services provided effectively, especially any document directly concerning the number
of hours performed and they were not provided any information on how the prices of the services were
established. On 1st August 2013, the fiscal authority issued a rectified imposing decision thus refusing the
beneficiary the right to deduct the VAT charged by the suppliers on the amount of 17,000 Euros.
The beneficiary challenged the decision and the amendment was rejected by the fiscal authority. It has
appealed to the court. That court pointed out that the contracts signed by the beneficiary only set out the
consultancy services and did not indicate any concrete result to be achieved in terms of subject, execution
time, reception mode and the unit price of these services. That court adds that the decision of the parties to
remunerate the services offered by the providers by the payment, at certain deadlines, of lump sums
demonstrates that these parties have not conditioned and linked the remuneration chargeability to a concrete
result, so it is not necessary to examine whether such results were actually achieved.
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The Court decided that Article 24 (1) of Directive 2006/112 / EC of November 28. 2006 on the common
system of value added tax must be interpreted in the way that the meaning of the phrase "services supply"
includes the subscription contracts on the provision of consulting services to a company, especially legal,
commercial and financial, within which the provider was made available to the beneficiary during the
contract. Regarding the subscription contracts on the provision of consultancy services,such as those in
question in the main litigation, Article 62 (2), Article 63 and Article 64 (1) of the VAT Directive must be
interpreted by taking into consideration that the generating factor of the tax and its chargeability occur after
the period which payment was agreed for, without being important whether the recipient actually turned to
the provider’s services or how often he has done that.

CONCLUSIONS
The new Fiscal Code (Law no. 227/2015 regarding the Fiscal Code was last updated by Law no. 358 /
31.12.2015) together with its implementing rules (GD no. 1/2016 - approving the Methodological Norms for
the application of law no. 227/2015) is already proceeding under. With its enforcement (1 January 2016), it
amended the secondary legislation as well. It would have been desirable, in the light of the above mentioned
context that our legislation would harmonize with the European legislation on taxes and fees. It is
incomprehensible that a head of government, involved in a personal fiscal cause, would justify himself to the
investigation organs by a decision of the European Court of Justice, as long as he, who led a government
that drafted the new tax legislation, "forgot" to adapt to these new tax law decisions of this institution (which,
paradoxically, would have favoured him).
As we know, in addition to Directive 2006/112 / EC, implemented in national legislation, it is mandatory for
the Member States to implement the European Court of Justice rulings which are mandatory, even if not
specifically mentioned in the legislation. Exemplary in terms of the right to deduct VAT, the general rule laid
down in national legislation stipulates that it may be exercised for purchases that are intended for the benefit
of carrying out taxable transactions. In other words, if today during a tax audit, a taxpayer is faced with
similar situations to those described above; the taxpayer can and must rely on them.
Given the above mentioned aspects, we still hope that with the next modification of the Fiscal Code, the
issues raised here will find resolution and "the Fiscal Code" will no longer be similar to some prophecies
which give you the impression that you have understand what they are intended to pass on to you, yet you
are not at all sure of it, especially when your colleague said that he had understood something else…

REFERENCES

 Law. 227/2015 regarding the Fiscal Code, with the last update: Law no. 358/2015;
 Government Decision no. 1/2016 approving rules for the application of the Fiscal Code;

 Directive 2006/112 / EU Council of 28 November 2006;

 Directive. 77/388 / EC of 17 May 1977;

 Government Emergency Ordinance no. 106/2007 (amending Law no. 571/2003 regarding the Fiscal
Code and the references to articles in the 6th Directive - 77/388 / EEC have been replaced by references to
Directive 112/2006);

 Regulation M.E.F. no. 1777/2005;

 Decision of European Court of Justice in Case C-37/95;

 Decision of European Court of Justice in Case C-110/94;

 Decision of European Court of Justice in Case C-268/83;

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 Decision of European Court of Justice in Case C-183/14.

 Case C-463/14 (litigation between Asparuhovo Lake Investment Company OOD and Direktor na
Direktsia "danachno-osiguritelna Obzhalvane i praktika" Varna pri Tsentralno za upravlenie na Natsionalna
agents PRIHODITE) on consultancy contracts.

 Case C-37/95 (litigation between the Belgian State v. Ghent Coal Terminal NV, C-37/95 Belgian
State and Ghent Coal Terminal NV, C-110/94 Intercommunale voor zeewaterrontzilting (INZO) v. Belgian
State and C- 268/83 DA Rompelman and EA Rompelman - Van Deelen v. Minister van Financiën) on
investments.

 Case C-110/94 (litigation between Intercommunale voor zeewaterrontzilting (INZO) and Belgian
State) on investments.

 Case C-268/83 (litigation between D.A. Rompelman and EA Rompelman - Van Deelen and Minister
van Financiën) investments
 Jianu R., Biban S., O nouă hotărâre a Curții de Justiție a Uniunii Europene impune modificarea
legislației în material deductibilității TVA, C.C.F. Bucureşti, Rev. “Consultant fiscal”, anul VIII-nr. 45, 2015.