45. TVA aferentă unor tranzacții desfășurate de o societate dizolvată. Practică abuzivă. Necesitatea obținerii unui avantaj fiscal și care constituie scopul esențial pentru care contribuabilul a desfășurat operațiunile respective
45. VAT related to certain transactions conducted by a dissolved company. Abusive practice. The need for obtaining a fiscal benefit and which represents the essential purpose for which the taxpayer carried on the respective operations

Summary/Abstract: According to art. 11 para. (12) of Law no. 227/2015 on the Fiscal Code, the relevant fiscal bodies are entitled to cancel the VAT deducted in relation to each transaction whenever it is found that the right of deduction was abusively exercised. In order to invoke the abuse of right, two requirements should be cumulatively met: a) the transactions in this case, despite the formal application of the requirements laid down in the legal provisions, shall result in guaranteeing some fiscal benefits which would be contrary to the purpose of those legal provisions; b) the fact that the essential purpose of the operations in this case shall be to obtain a tax benefit should be objectively proven. These requirements are similar to those enshrined in the practice of the Court of Justice of the European Union (see judgment in Case C255/02 Halifax). In the case of carrying on business activities, by a company dissolved due to the non performance of the legal obligations regarding the registration of the financial statements with the Trade Register Office, the second requirement above is not met as the purpose of the operations in this case has not been represented by obtaining a tax benefit.

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