Judgment of the Court (Third Chamber) of 27 September 2007 (reference for a preliminary ruling from the Bundesfinanzhof — Germany) — Albert Collée, as full legal successor to Collée KG v Finanzamt Limburg an der Lahn

(Case C-146/05) (1)

(Sixth VAT Directive - First subparagraph of Article 28c(A)(a) - Intra-Community supply - Refusal of exemption - Belated production of evidence of the supply)

(2007/C 297/03)

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: Albert Collée, as full legal successor to Collée KG

Defendant: Finanzamt Limburg an der Lahn

Re:

Preliminary ruling — Bundesfinanzhof — Interpretation of Article 28c(A)(a) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1), as amended — Refusal of tax exemption in respect of the turnover of an intra-Community supply of goods — Delayed production of the invoice proving the intra-Community nature of the transaction.

Operative part of the judgment

The first subparagraph of Article 28c(A)(a) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 91/680/EEC of 16 December 1991, must be interpreted as precluding the refusal by the tax authority of a Member State to allow an intra-Community supply — which actually took place — to be exempt from value added tax solely on the ground that the evidence of such a supply was not produced in good time.

When examining the right of exemption from value added tax in relation to such a supply, the referring court should take into account the fact that the taxable person initially knowingly concealed the fact that an intra-Community supply had occurred only if there is a risk of a loss in tax revenues and that risk has not been wholly eliminated by the taxable person in question.

(1)  OJ C 143, 11.6.2005.