Request for a preliminary ruling from the Naczelny Sąd Administracyjny (Poland) lodged on 17 October 2018 — Unitel Sp. z o.o. w Warszawie v Dyrektor Izby Skarbowej w Warszawie

(Case C-653/18)

Language of the case: Polish

Referring court

Naczelny Sąd Administracyjny

Parties to the main proceedings

Appellant: Unitel Sp. z o.o. w Warszawie

Respondent: Dyrektor Izby Skarbowej w Warszawie

Questions referred

In the light of Article 146(1)(a) and (b) and Article 131 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax ¹ and of the principles of taxation of consumption, neutrality and proportionality, should the correct national practice be to apply an exemption with the right to deduct (which in Poland means application of a 0% rate) in each case where both of the following conditions are met:

(a)    the goods have been exported to an unidentified recipient outside the European Union; and

(b)    there is clear evidence that the goods have left the territory of the European Union, and this is not disputed?

Do the provisions of Article 146(1)(a) and (b) and Article 131 of Directive 2006/112/EC and the principles of taxation of consumption, neutrality and proportionality preclude a national practice whereby it is assumed that no supply of goods has taken place in the case where the goods have been indubitably exported outside the territory of the European Union, and following their exportation the tax authorities establish in the course of their investigation that the person actually acquiring the goods was not the entity to whom the taxable person issued the invoice documenting the supply, but was another entity unidentified by the authorities, as a result of which the authorities refuse to exempt such a transaction from tax with the right to deduct (which in Poland means application of a 0% rate)?

In the light of Article 146(1)(a) and (b) and Article 131 of Directive 2006/112/EC and of the principles of taxation of consumption, neutrality and proportionality, should the correct national practice be to apply the domestic rate to the supply of goods where there is clear evidence that the goods have left the territory of the European Union, but the authorities, in the absence of an identified recipient, conclude that no supply of goods has taken place, or should it rather be assumed that no taxable transaction for VAT purposes has taken place at all in those circumstances and therefore that the taxable person is not entitled to deduct input VAT on the purchase of the exported goods under Article 168 of Directive 2006/112/EC?

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¹ OJ 2006 L 347, p. 1.