On 10 May 2022 the Supreme Administrative Court ("SAC") ruled on Interpretative Case № 2/2020, initiated at the request of the President of the Supreme Administrative Court for an interpretative decision on the following matter:
“Does the scope of joint and several liability under Art. 177 of the VAT Act also include the obligations for default interest on the due and unpaid tax from another person?”
There were two opposing views in the case law on the subject-matter. According to the first opinion, the liability under Art. 177 of the Value Added Tax Act (“VATA”) does not include interest on due and unpaid value added tax ("VAT") from another person. In these judicial acts, it is accepted that the liability is limited only to the amount of the due and unpaid tax. In some of the court decisions, it is maintained that the interests for the due and unpaid VAT are excluded from the joint and several liability on the grounds that Art. 17 VATA is a special norm, which derogates from the application of the general norm of Art. 16, para. 3 of the Tax and Social Security Procedural Code (“TSSPC”). As the provision is clear, it should be applied according to its exact meaning, and it should not be interpreted broadly. The other part of the decisions, having the same opinion accept that the interest is not included in the scope of the responsibility under Art. 177 VATA, as this is a liability for tax delict.
According to the second opinion, the liability under Art. 177 VATA also includes the interest for the due and unpaid VAT from another person. In these decisions, it is stated that the responsible persons under Art. 177 VATA are obligated persons under Art. 14, item 3 of the TSSPC, namely - persons responsible for the obligation of the holder of the tax liability. By virtue of Art. 16, para. 3 in connection with para. 1 of the TSSPC the liability of the obligated person under Art. 14, item 3 of the TSSPC covers the taxes and the obligatory social security contributions, the interests and the expenses for their collection. Therefore, the liability under Art. 177 VATA, as a special type of joint and several liability, is not limited only to the amount of tax due and unpaid.
The General Assembly of Judges of the Supreme Administrative Court accepted the second opinion as correct. Art. 177 VATA provides for special type of joint and several liability of persons registered under the VATA, for whom, when the cumulative conditions specified in the Act are fulfilled, it is provided to bear responsibility for the obligation of another person, who is a VAT payer. Liability is defined as joint and several in Art. 205 of Council Directive 2006/112 / EC of 28 November 2006 on the common system of value added tax (“VAT Directive ”). This rule provides that Member States may provide that a person other than the VAT payer is jointly and severally liable for the payment of VAT. In the case law of the Court of Justice of the European Union ("CJEU") on the interpretation of Art. 205 of the VAT Directive also assumes that the liability is joint and several. In a judgement of 20 May 2021 in case C-4/20, ALTI, ECLI: EU: C: 2021: 397, the CJEU accepted that Art. 205 of the VAT Directive, in principle, allows Member States to adopt – for the purposes of effective VAT collection – measures under which a person other than the ordinary payer of that tax is jointly and severally liable for payment of that tax (para. 29).
Subject of joint and several liability under Art. 177 VATA are registered persons who are different from the person paying VAT. Persons payers of the tax are the ones defined in Art. 82 – Art. 85a VATA, which have the obligation to pay VAT. The registered persons under Art. 177 VATA are third parties who are responsible for the obligation of another person, duty-bearer to pay the tax. Pursuant to Art. 16, para. 1 TSSPC, they are obligated persons under Art. 14, item 3 TSSPC. In this sense is also an interpretative decision № 6/15.04.2021 of the General Assembly of the Judges of SAC on interpretative case № 6/2019, according to which the liability of an obligated person under Art. 14, item 3 TSSPC is engaged with the audit act under Art. 177 VATA. By virtue of Art. 16, para. 3 TSSPC the liability of the obligated person under Art. 14, item 3 TSSPC covers taxes, interest and costs for their collection.
SAC is of the opinion that the norm of Art. 177, para. 1 VATA is not special in relation to Art. 16, para. 3 TSSPC, as it regulates the grounds on which liability arises, part of which is the presence of due and unpaid tax from the supplier. There is no broad interpretation of the tax legal norm, as the inclusion of default interest in the scope of liability under Art. 177 VATA is by virtue of an explicit legal norm applicable in all cases in which the law provides for liability of an obligated person under Art. 14, item 3 TSSPC. In this regard, the interpretation in the judgement of the CJEU in case C-4/20 should be taken into account, according to which although according to the text of Art. 205 of the VAT Directive that the joint and several liability provided for in this Article applies to the payment of VAT, this text does not preclude Member States from imposing on the joint and several debtor all obligations related to this tax, such as the obligation to pay default interest due to non-payment of the specified tax by its payer (para. 42). In paras. 43 and 44 of the judgement the court has accepted that national legal framework (Art. 177 VATA and Art. 16, para. 3 TSSPC) corresponds to the stated objectives, and has ruled that Art. 205 of the VAT Directive must be interpreted as allowing national legislation according to which the jointly and severally liable person within the meaning of this article must pay not only the amount of VAT not paid by the payer of this tax, but also the default interest due by that payer on the said amount when it is proven that the person has exercised his right to deduct VAT, knowing or ought to have known that the said payer will not pay that tax.
Therefore, the SAC states that the scope of joint and several liability under Art. 177 VATA also includes the liabilities for default interest on the due and unpaid tax by another person.
The decision was signed with a special opinion by 14 supreme judges, who consider that the third party should only owe the unpaid tax. You can get acquainted with it in more detail here