CJEU – VAT tax obligation arises in the moment of signing of site acceptance protocol
On May 2, 2019, the CJEU in case C-224/18 „Budimex” stated that Directive 2006/112 / EC does not preclude that in the absence of an invoice regarding services rendered or delayed, the formal reception of this service is deemed to be considered the time at which the service was performed if: firstly, the formality of receipt has been agreed by the parties in a contract reflecting economic and commercial reality in the field in which the service is performed and, secondly, this formality constitutes a material end to the service and determines eventually the amount of the consideration due.
It is highly probable that this judgment will turn out to be a breakthrough for the tax obligation in the event of acceptance of some construction works. It should be noted that the current general interpretation of the Minister of Finance of April 1, 2016, no. PT3.8101.41.2015.AEW.2016.AMT.141 regarding the provisions of the Act of March 11, 2004 on the tax on goods and services (VAT) in the scope of the moment of tax obligation for construction or construction-assembly services (Journal of Laws of Min. Fin. item 31), clearly states that the date of performance of the construction or construction and assembly service should be the actual date of performance of the service, i.e. the day on which – in connection with the performance of the service or part thereof (if the service is partially accepted) the works or parts thereof have actually been completed – the contractor submits them for collection (in the contractor’s opinion the service or part thereof is ready for their acceptance by the purchaser of the service), and thus explicitly omits the possibility of making the tax obligation conditional upon the signing of the delivery and acceptance protocol.
The Ministry of Finance in the Communication of May 31, 2019 stated that it plans to present a position on this issue after the Supreme Administrative Court settled the matter. Nevertheless, in the opinion of the Ministry, general interpretation enables the implementation of the guidelines from the judgment described. It seems, therefore, that the judgment of the Supreme Administrative Court will be crucial in this matter.
Judgment of CJEU C-224/18 „Budimex” allows for making the acceptance of work conditional, and thus the tax obligation arising from the signing of the transfer-receipt protocol. However, in this matter the judgment of the Supreme Administrative Court and the later position of the Ministry of Finance will be extremely important.