Refusal to recognize the right to deduct VAT. Fictitious economic operation

DREPTUL CONTENCIOSULUI ADMINISTRATIV ŞI FISCAL

Abstract

Without a possibility of making a person liable, in general, for the verification of the issuer of the invoice related to the goods and services for which the exercise of the right to deduct VAT is requested, a duty of care considered depending on the particular elements of the case shall not be excluded. The only guidelines provided by the CJEU in application of the „test of knowledge” shall be in the matter of customs duties - in the case C-454/10 (Oliver Jestel) it being acknowledged that the phrase „he should have known normally” refers to the behaviour of an approved and diligent operator, with the stipulation that the information which have been at its disposal or which the operator should have known normally, must be taken into consideration, especially as a result of its contractual obligations. A first element which could be taken into account is the fact that the final subcontractor (supposed to have executed the works) is the same for all works, irrespectively of the party which the plaintiff concluded the subsequent contracts with. The appointment of the same final contractor, impossible to be verified by the tax body, shall be a relevant circumstance in this case. Assuming a participation strictly on paper, in the performance of the purchase agreements is unlikely to hold harmless a party from the obligations imposed on it as subcontractor. The fact that a contracting party accepted contractual relationships with the third parties indicated by the successful tenderer, the final result consisting in the performance of works by the same unverifiable company, involves that it accepted to participate in a transactional chain, whose last link was pre-established, assuming also the risk of certain unknown contractual partners, and these issues cannot be specific to an approved economic operator. As regards this last notion, it should be emphasized that the obligation to verify the companies which the contracting party will cooperate with for the performance of the contracts shall be legally determined by the provisions of the GEO no. 34/2006. Subcontracting in the matter of public procurement may be achieved under conditions of transparency, with the consent and information of the contracting authority. Contracts concluded with subcontractors shall be an appendix to the public procurement contract, and they cannot be changed without the consent of the contracting authority, and the procedure report comprises mentions relating to the share of the contract which the successful tenderer declared to outsource, together with the denomination/name of the subcontractors, and the award notice includes the share of the contract to be subcontracted. These obligations incumbent on the successful tenderer customize, at the same time, the obligations of the subcontractor which, in virtue of the contract, shall become a party to the performance of the public procurement contract and, in this capacity, it cannot rely on the failure to carry out any checks regarding its own subcontractors.