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30.11.2022

Tax & Financial Standards New Judgments of the ECJ For November 2022

Tax & Financial Standards New Judgments of the ECJ For November 2022

Tax&Financial Standards (T&FSt) – International Financial Reporting Standards, Date or entry into force: 1.01.2022 (consolidated version), in 4 languages - Bulgarian, English, German and French

New judgments

Judicial cooperation in criminal matters — Imposition of a financial penalty on a legal person for non-payment of tax debts — Penalties of a criminal nature — Principles of the presumption of innocence and the legality and proportionality of criminal offences and penalties — Rights of the defence — Imposition of a criminal penalty on a legal person for an offence committed by the representative of that legal person — Parallel criminal proceedings against that representative that have not been concluded — Concepts of „confiscation“ and „financial penalty“

Key aspects of the decision in the economic range:

Charter of Fundamental Rights of the European Union. Principles of legality and proportionality of criminal offences and penalties. Presumption of innocence. National legislation under which a national court may impose on a legal person a criminal penalty for an offence for which a natural person who has the power to bind or represent that legal person is allegedly liable, where that legal person has not been put in a position to dispute the reality of that offence.

Concepts of „confiscation“ and „financial penalty“.

Proceedings for the purpose of imposing a financial penalty for a criminal offence relating to value added tax (VAT) alleged against its manager and representative.

Freedom of establishment — Transfer of a company’s registered office to a Member State other than that in which it was incorporated — Recovery of write-downs recorded prior to the transfer — Exemption — Measures taken by a Member State to preserve the allocation of the power to impose taxes between the Member States

Key aspects of the decision in the economic range:

National tax legislation under which increases in value of shares in companies recorded by a company in a Member State, after the transfer of its registered office in that Member State, are treated as being unrealised capital gains, without taking into account whether those shares gave rise to the recording of write-downs by that company on a date on which it was a taxable resident of another Member State.

Proceedings concerning the tax treatment of transactions corresponding to the recovery of write-downs recorded prior to the transfer of its registered office from Luxembourg to Belgium.

Preventing the use of the financial system for the purposes of money laundering and terrorist financing — Risk assessment carried out by the obliged entities — Identification of risks by Member States and obliged entities — Enhanced due diligence measures — A third country with a high risk of corruption — Requirements to the obliged entities for proof and documentation — Constant monitoring of the client, that must be carried out by the obliged entities — Publication of sanctioning decisions

Key aspects of the decision in the economic range:

An obliged entity that can provide the competent national authority with documents from which it can be seen, on the one hand, that it has analyzed the concluded transaction and established commercial relationships and, on the other hand, that it has duly taken them into account in order to take the necessary measures for a complex screening against identified money laundering and terrorist financing risks. Automatic application of enhanced due diligence measures. Obliged entities, which are obliged, based on risk assessment, to take due diligence measures, if necessary of an extended nature, in relation to an existing client, in the presence of a change in the relevant circumstances of the situation of this client(s), where there is a high risk of money laundering and terrorist financing.

Proceedings between R and the tax administration V concerning a financial penalty imposed on R for breaches of national anti-money laundering and anti-terrorist financing provisions.

Common system of value added tax – Supply of services free of charge – Award of retail vouchers free of charge to staff of the taxable person’s business as part of an employee recognition and reward scheme – Transactions treated as supplies of services for consideration – Principle of fiscal neutrality

Key aspects of the decision in the economic range:

Value added tax. Transfer of vouchers as a taxable transaction. Supply of services consisting, for a business, in offering retail vouchers to its employees, as part of a programme set up by that company, intended to recognise and reward the most deserving and high-performing employees. Legal conditions for chargeability of VAT in respect of purchase vouchers.

Proceedings concerning a tax adjustment in respect of undeclared output value added tax on the value of retail vouchers offered to employees, under a recognition and reward programme.

Prevention of the use of the financial system for the purposes of money laundering or terrorist financing – Access for any member of the general public to the information on beneficial ownership – Validity – Charter of Fundamental Rights of the European Union – Respect for private and family life – Protection of personal data

Key aspects of the decision in the economic range:

Register of Beneficial Owners. Principle of transparency. Protection of natural persons in connection with the processing of personal data. Exceptions to the requirement to access the register of beneficial owners. Conditions. A balance between the requirement of transparency in relation to the beneficial owners and the control structures of the companies — a key factor in the prevention of money laundering and terrorist financing, and respect for the fundamental rights of the affected persons, namely the beneficial owners.

Two sets of proceedings, concerning LBR’s refusal to prevent the general public’s access to information concerning, first, W’s status as the beneficial owner of a real estate company and, secondly, S’s beneficial owner.

Charter of Fundamental Rights of the European Union — Promotion of energy efficiency — Effective judicial protection — National procedural rule providing that an action seeking to dispute the compatibility of a national provision with EU law is devoid of purpose where the provision is repealed in the course of proceedings

Key aspects of the decision in the economic range:

Energy policy. Right to an effective remedy and to judicial protection. Damages for breach of EU law. Amendment of national legislation during the course of an appeal. The principle of effectiveness, precluding a procedural rule of a Member State according to which, where a provision of domestic law challenged by an action for annulment on the ground that it is contrary to EU law is repealed and therefore ceases to have any effect for the future, the dispute is deemed to have become devoid of purpose with the result that there is no longer any need to adjudicate on it.

Proceedings between I and the Supreme Administrative Court seeking compensation for the harm allegedly sustained by I due to a decision of that national court, having found that the action brought by I against a national regulatory provision became devoid of purpose as a result of the amendment of the contested provision.

 

October

 

Value added tax – Point of reference for tax purposes – Transfer of greenhouse gas emission allowances – Recipient involved in VAT evasion in a chain of transactions – Taxable person who knew or should have known about that evasion

Key aspects of the decision in the economic range:

The provisions of Council Directive 2006/112/EC must be interpreted as precluding, in the case of a supply of services by a taxable person established in one Member State to a taxable person established in another Member State, the authorities of the former Member State from taking the view that the place of that supply is located in that other Member State – is nonetheless deemed to be located in the former Member State where the supplier knew, or should have known, that he or she was, by that supply, participating in VAT evasion.

Proceedings concerning the imposition of value added tax on transactions consisting of the transfer of greenhouse gas emission allowances.