© 2025 by Michael Firth KC, Gray's Inn Tax Chambers
Contact: michael.firth@taxbar.com
A17. Proof
GENERAL​
​
- Evidence procedures matter for national law
"[44] Since EU law does not provide for rules concerning the procedures for taking evidence in matters of VAT fraud, these objective elements must be established by the tax authorities in accordance with the rules of evidence laid down by national law. However, these rules must not undermine the effectiveness of EU law (Order of 3 September 2020, Vikingo FÅ‘vállalkozó, C-610/19, EU:C:2020:673, paragraph 59 and the case law cited)." (Granulines Invest C-270/24)
​​
"[30] Therefore, it must be recalled that, in the absence of any provision in the VAT Directive as to the evidence that taxable persons are required to provide in order to be granted an exemption from VAT, it is for the Member States to lay down, in accordance with Article 131 of that directive, the conditions under which intra-Community transactions will be exempt, with a view to ensuring the correct and straightforward application of those exemptions and to preventing any possible evasion, any avoidance or any abuse. The Member States must, when they exercise their powers, observe the general principles of law which form part of the EU legal order, which include, in particular, the principles of legal certainty and proportionality (see, to that effect, judgment of 8 November 2018, Cartrans Spedition, C‑495/17, EU:C:2018:887, paragraph 37 and the case-law cited).
...
[32] More specifically, the Court has also stated that the obligations imposed on taxable persons with regard to evidence must be determined in the light of the conditions expressly laid down in that regard by national law and in accordance with the general practice established in respect of similar transactions (judgment of 8 November 2018, Cartrans Spedition, C‑495/17, EU:C:2018:887, paragraph 57 and the case-law cited)." (B2 Energy C‑676/22)
​
- Take proper account of all information in possession to substantiate likelihood
"[21] It is also apparent from the case-law that, with a view to the exemption from VAT, the tax authorities must take proper account of all the information in their possession for the purposes of examining whether those documents may, where necessary, substantiate the likelihood of the actual intra-Community supply (judgment of 29 February 2024, B2 Energy, C‑676/22, EU:C:2024:186, paragraph 36)." (Flo Veneer C-639/24)
​​
"[36] In that regard, it should be noted that, with a view to the exemption from VAT, the tax authorities must take proper account of all the information in their possession, such as the documents mentioned by the referring court, for the purposes of examining whether those documents may, where necessary, substantiate the likelihood of the actual supply of the goods transported to a Member State other than the Member State of departure of the transport or dispatch (see, by analogy, judgment of 8 November 2018, Cartrans Spedition, C‑495/17, EU:C:2018:887, paragraphs 66 and 67)." (B2 Energy C‑676/22)
​
- Cannot limit enquiry to specific evidence/one means of proof
"[45] On the other hand, in the light of the case-law set out in paragraphs 38 to 40 of the present judgment, the granting of that exemption cannot be made subject to the mandatory condition that the provider produce, for the purposes of establishing that the conditions referred to in the preceding paragraph are satisfied, specific documents required by national legislation to the exclusion of any other evidence capable of shoring up the conviction of the competent tax authority (see, by analogy, judgment of 8 November 2018, Cartrans Spedition, C‑495/17, EU:C:2018:887, paragraph 49).
[46] Insisting upon one such means of proof to the exclusion of any other would amount to making the right to an exemption subject to compliance with formal obligations, within the meaning of the case-law referred to in paragraphs 39 and 40 of the present judgment, without examining whether the substantive requirements laid down by EU law have in fact been satisfied or not.
[47] Consequently, in order to ascertain whether, as regards a supply of carriage services, the substantive conditions to which the exemption provided for in Article 144 of the VAT Directive, read in conjunction with Article 86(1)(b) thereof, is subject are satisfied, the competent tax authorities must examine all the information available to them. By contrast, those authorities cannot deduce that this was not the case from the mere fact that the person liable is unable to produce one or more of the specific documents required by national legislation, such as the legislation at issue in the main proceedings (see, by analogy, judgment of 8 November 2018, Cartrans Spedition, C‑495/17, EU:C:2018:887, paragraph 52).
...
[51] It is only if, having regard to the factual circumstances and despite the evidence supplied by the provider, the information necessary to check that the value of the services has been included in the taxable amount for VAT purposes of the imported goods is lacking, that the taxable person must be refused exemption from VAT." ​(Cartrans Preda C-461/21)
​
- Facts may clearly show unidentified recipient was taxable person
"[34] It is also apparent from the wording of the order for reference and from the wording of the question referred that that question is based on the premiss that the tax authorities had the information necessary to verify, in the light of the facts, that the actual recipients had the status of taxable persons. More specifically, the referring court points out that the transport of rapeseed oil from the Czech Republic to Poland and its unloading at premises of the recipients, who are not identified by the applicant in the main proceedings in its tax returns, were not disputed by the tax authorities. Moreover, the supply at issue in the main proceedings concerns goods which, by their nature, appear to be intended for use in the course of an economic activity.
...
[37] Furthermore, in the light of the principle of fiscal neutrality, a taxable person cannot be required, in order to be able to exercise its right to exemption from VAT, to prove, in every case, where the recipient of the goods concerned has not been identified, that that recipient has the status of a taxable person in so far as it clearly follows from the factual circumstances that that recipient necessarily had that status (see, by analogy, judgment of 9 December 2021, Kemwater ProChemie, C‑154/20, EU:C:2021:989, paragraph 40)." ​(B2 Energy C‑676/22)​​​
​​
"[40] To deny a taxable person the right to deduct VAT on the ground that the true supplier of the goods or services concerned has not been identified and that that taxable person has not proved that that supplier was a taxable person, when it clearly follows from the factual circumstances that that supplier necessarily had that status, would be contrary to the principle of fiscal neutrality and to the case-law cited in paragraphs 26 to 30 above. Consequently, contrary to the referring court’s submissions, in order to be able to exercise that right the taxable person cannot be required, in every case, to prove, where the true supplier of the goods or services concerned has not been identified, that that supplier has the status of taxable person." (Kemwater ProChemie C-154/20)
​
- Including that they met the VAT registration threshold
"[39] That is so in particular, even though the Member State has made use of the option in Article 287 of Directive 2006/112 to exempt taxable persons whose annual turnover is no higher than a certain amount, where it can be inferred with certainty from the factual circumstances, such as the volume and price of the goods or services purchased, that the supplier’s annual turnover exceeds that amount, with the result that that supplier cannot benefit from the exemption provided for in that article, and that supplier necessarily has the status of taxable person." ​(Kemwater ProChemie C-154/20)
​
Evidence that is impossible/excessively difficult to obtain​
​
- Cannot make exercise of right dependent upon evidence that it is excessively difficult to obtain/does not exist
​
"[63] However, in so far as possession of an invoice is, under national law, an essential condition for the reduction of the taxable amount, VAT neutrality is affected when it is impossible or excessively difficult for the person entitled to the refund to obtain such an invoice (see, to that effect, judgment of 26 January 2012, Kraft Foods Polska, C 588/10, EU:C:2012:40, paragraph 38).
[64] It is apparent from the order for reference that Boehringer Ingelheim does not have invoices in respect of the payments it made to the State health insurance agency, since the latter issued only requests for payment.
[65] In such a situation, the principles of VAT neutrality and proportionality require the Member State concerned to permit the taxable person to establish by other means before the national tax authorities that the transaction giving entitlement to a reduction in the taxable amount was in fact carried out (see, to that effect, judgment of 26 January 2012, Kraft Foods Polska, C 588/10, EU:C:2012:40, paragraph 40). This is especially so where, as in the present case, the transaction in question took place with regard to a State entity." (Boehringer Ingelheim C-717/19)
​​
- Evidence which a third party is under no binding obligation to provide making exercise of right excessively difficult
​
"[37] Moreover, given that possession of the acknowledgment of receipt in question enables the supplier of goods or services to calculate the VAT payable on the basis of the amounts set out in the corrected invoice or to recover all the excess VAT paid to the tax authorities, that requirement does not, in principle, undermine VAT neutrality.
[38] However, possession of acknowledgment of receipt being, under national law, an essential condition for calculating the VAT payable on the basis of the amounts set out in the correcting invoice or for recovering the excess VAT paid, it must be held that, in the light of the case-law cited at paragraphs 29 to 31 above, VAT neutrality is affected when it is impossible or excessively difficult for the supplier of goods or services to obtain such acknowledgment of receipt within a reasonable period of time.
[39] KFP stated, without being contradicted on this point, that, under Polish law, the purchaser of goods or services is not under any legally binding obligation to acknowledge receipt of a correcting invoice, which is a matter for verification by the referring court.
[40] If it is impossible or excessively difficult for the supplier of goods or services to recover, within a reasonable period, the excess VAT paid to the tax authorities on the basis of the initial invoice because of the condition at issue in the main proceedings, the principles of VAT neutrality and proportionality require the Member State concerned to permit the taxable person to establish by other means before the national tax authorities, first, that he has taken all the steps necessary in the circumstances of the case to satisfy himself that the purchaser of the goods or services is in possession of the correcting invoice and that he is aware of it and, second, that the transaction in question was in fact carried out in accordance with the conditions set out in the correcting invoice.
[41] Copies of the correcting invoice and the reminder addressed to the purchaser of the goods or services to send acknowledgment of receipt and, as KFP submitted at the hearing without being contradicted on that point, proof of payment or the production of entries from the accounts which make it possible to identify the amount actually paid to the taxable person in connection with the transaction in question by the purchaser of the goods or services may serve that purpose." (Kraft Foods Polska C-588/10)
​
Burden of proof​
​
- Cannot request tax authority to use mutual assistance directive to seek to obtain evidence for taxpayer's benefit
"[38] In view of the above considerations, the answer to the question referred must be that the first subparagraph of Article 28c(A)(a) of the Sixth Directive, read in conjunction with the mutual assistance directive and the administrative cooperation regulation, does not require the tax authorities of the Member State of dispatch or transport on an intra-Community supply of goods to request information from the authorities of the destination Member State alleged by the supplier." (Twoh International C-184/05)
​
- Burden of proof on person seeking exemption or tax derogation
"[26] The Court considers that, as the Commission of the European Communities has correctly argued, the principle that the burden of proving entitlement to a tax derogation or exemption rests upon the person seeking to benefit from such a right is to be viewed as being within the limits imposed by Community law. Thus, for the purpose of applying the first subparagraph of Article 28c(A)(a) of the Sixth Directive, it is for the supplier of the goods to furnish the proof that the conditions for exemption referred to in paragraph 23 of this judgment are fulfilled." (Twoh International C-184/05)
​
Extent of proof​
​
- Take account of what the taxpayer could actually be expected to provide (e.g. where customer responsible for export)
"[42] Furthermore, it should be pointed out that, where the purchaser has the right to dispose of the goods as owner in the Member State of supply and where that person assumes the obligation of transportation of those goods to the destination Member State, account must be taken of the fact that the evidence that the vendor might submit to the tax authorities depends essentially on information that it receives for those purposes from the purchaser (see, to that effect, Euro Tyre Holding, paragraph 37).
[43] The Court accordingly found that, once the vendor has fulfilled his obligations relating to evidence of an intra-Community supply, where the contractual obligation to dispatch or to transport the goods out of the Member State of supply has not been satisfied by the purchaser, it is the latter which must be held liable for the VAT in that Member State (see, to that effect, Teleos and Others, paragraphs 66 and 67, and Euro Tyre Holding, paragraph 38).
[44] It is apparent from the order for reference that, in the case before the referring court, Mecsek-Gabona claims to be entitled to exemption from VAT on the basis of (i) the VAT identification number assigned to the purchaser by the Italian tax authority, (ii) the fact that the goods sold had been picked up by foreign-registered vehicles and (iii) the CMRs returned by the purchaser from its address, indicating that the goods had been transported to Italy." (Mecsek-Gabona C-273/11)
​
- Cannot require conclusive proof
"[41] On that point, the Court has observed that, where there appears to be no tangible evidence to substantiate the conclusion that the goods concerned have been transferred out of the territory of the Member State of supply, to oblige taxable persons to provide conclusive proof of this does not ensure the correct and straightforward application of the exemptions. On the contrary, that obligation places taxable persons in an uncertain situation as regards the possibility of applying the exemption to their intra-Community supplies or as regards the need to include VAT in the sale price (see, to that effect, Teleos and Others, paragraphs 49 and 51)." (Mecsek-Gabona C-273/11)
​​
"[49] In the main proceedings, it is clear both from the contents of the Court’s file and from the observations submitted to the Court that there appears to be no tangible evidence either to support the conclusion that the goods concerned were transferred out of the territory of the Member State of supply or to exclude the possibility of manipulation and fraud. It is nevertheless necessary, in order to ensure the correct and straightforward application of the exemptions, that the national authorities lay down the conditions under which they exempt intra-Community supplies of goods.
[50] Accordingly, it would be contrary to the principle of legal certainty if a Member State which has laid down the conditions for the application of the exemption of intra-Community supplies by prescribing, among other things, a list of the documents to be presented to the competent authorities, and which has accepted, initially, the documents presented by the supplier as evidence establishing entitlement to the exemption, could subsequently require that supplier to account for the VAT on that supply, where it transpires that, because of the purchaser’s fraud, of which the supplier had and could have had no knowledge, the goods concerned did not actually leave the territory of the Member State of supply.
[51] To oblige taxable persons to provide conclusive proof that the goods have physically left the Member State of supply does not ensure the correct and straightforward application of the exemptions. On the contrary, that obligation places them in an uncertain situation as regards the possibility of applying the exemption to their intra-Community supplies or as regards the need to include VAT in the sale price." (Teleos C-409/04)
​
- Tax authority seeking to establish tax liability in absence of documents aimed at obtaining most probable result possible
"[32] Furthermore, even if, in the context of a tax inspection, the checks carried out by the national authority concerned are aimed at re-establishing the situation that would have existed had there been no irregularity and, a fortiori, fraud, and if that authority endeavours, using various methods, to reconstitute concealed transactions and lost revenue, it is nevertheless necessary to point out that those methods cannot claim perfect reliability and that they involve an inevitable margin of uncertainty, such that they are in reality aimed at obtaining the most probable and most faithful tax result possible, according to the material facts collected during the tax inspection." (CB C-521/19)
​
Objective evidence​
​
- Predominant role of documentary evidence in VAT system
"[57] In so far as, during the limitation period, taxable persons must expect that their legal situation which arose based on their tax return may be challenged, then, when the tax authority informs them of the reopening of the procedure examining that situation, that that may mean they must justify the information contained in their tax return and, lastly, when they bring an action against the amended notice issued at the end of that procedure, that they must establish that their claim is well founded by means of an offer to prove, it is for them to ensure that they keep all the relevant supporting documents relating to their tax return until the tax decisions become final. Given the predominant role of the tax return and the documentary evidence in the common VAT system for the purposes of establishing the accuracy of taxable persons’ returns, it is therefore only in exceptional circumstances that it could be established that the excessive length of an administrative or judicial procedure is capable of having had an impact on the ability of the person concerned to defend him or herself." (Napfény-Toll C-615/21)
​​​
- Objective evidence that goods were actually supplied, such as documents held by suppliers
"[34] It follows that it is for the taxable person exercising the right to deduct VAT, in principle, to establish that the supplier of the goods or services on the basis of which that right is exercised had the status of taxable person. Accordingly, the taxable person is required to provide objective evidence that goods or services were actually supplied as inputs by taxable persons for the purposes of his or her own transactions subject to VAT, in respect of which he or she has actually paid VAT. That evidence may include, inter alia, documents held by the suppliers or service providers from whom the taxable person has acquired the goods or services in respect of which he or she has paid VAT (judgment of 11 November 2021, Ferimet, C‑281/20, EU:C:2021:910, paragraph 39 and the case-law cited)."​(Kenwater ProChemie C-154/20)
​
Falsified evidence​
​
- Abuse principle: essential aim of transaction must be established by objective factors
"[35]...Second, it must be apparent from a number of objective factors that the essential aim of the transactions concerned is solely to obtain that tax advantage (see, to that effect, judgments of 21 February 2006, Halifax and Others, C‑255/02, EU:C:2006:121, paragraphs 74 and 75, and of 11 November 2021, Ferimet, C‑281/20, EU:C:2021:910, paragraph 54 and the case-law cited)..." (UAB Ha.En C-227/21)
​
- Innocent party entitled to rely on falsified proof of export to claim zero-rating
"[27] It follows that a supplier must be able to rely on the lawfulness of the transaction that he carries out without risking the loss of his right to exemption from VAT, if, as in the case in the main proceedings, he is in no position to recognise – even by exercising due commercial care – that the conditions for the exemption were in fact not met, because the export proofs provided by the purchaser had been forged." (Netto Supermarket C-271/06)
​
- Collect tax from the customer who comply with contractual obligations re transport of goods
"[67] By contrast, as the Commission observes, once the supplier has fulfilled his obligations relating to evidence of an intra-Community supply, where the contractual obligation to dispatch or transport the goods out of the Member State of supply has not been satisfied by the purchaser, it is the latter who should be held liable for the VAT in that Member State." ​​(Teleos C-409/04)
​
Late evidence​
​
- Cannot systematically refuse to take into account late supplied evidence
"[47] In that regard, it should be noted, in the first place, that national legislation such as that at issue in the main proceedings has the effect of systematically preventing the refund of VAT to taxable persons who, although having replied late to a request for additional information, meet all the substantive conditions to obtain that refund. As has been recalled in paragraphs 35 and 36 of the present judgment, however, first, the right to a VAT refund constitutes a fundamental principle of the common system of VAT and, in principle, may not be limited and, second, the principle of VAT neutrality requires the deduction or refund of input VAT to be allowed if the substantive requirements are satisfied.
...
[51] The lack of possibility for the tax administration to take into account, due to the content of Paragraph 124(3) of the Law on the organisation of the tax administration, any late reply to a request of additional information, which results in a systematic rejection of those late replies, necessarily leads that administration to contravene that principle, since it is adopting a decision which it knows to be possibly based on incomplete – or even erroneous – elements. Moreover, the effect of that is that that tax administration disproportionately breaches the principle of VAT neutrality by leaving the taxable person liable to pay the VAT in respect of which he or she is entitled to obtain a refund, whereas the common system of VAT is intended to relieve the operator entirely of the burden of the VAT due or paid in the course of all his or her economic activities (see, to that effect, judgment of 21 October 2021, CHEP Equipment Pooling, C‑396/20, EU:C:2021:867, paragraph 55).
...
[54] In the light of the foregoing considerations, the answer to the first and second questions is that the first subparagraph of Article 23(2) of Directive 2008/9, read in the light of the principles of VAT neutrality and effectiveness, must be interpreted as meaning that it precludes national legislation under which a taxable person who has submitted an application for a refund of VAT is prohibited from providing, at the stage of the complaint before a second-tier tax authority, additional information, within the meaning of Article 20 of that directive, requested by the first-tier tax authority and which that taxable person did not provide to the latter authority within the one-month period laid down in Article 20(2) thereof, that period not constituting a limitation period." (Slovenské Energetické Strojárne C-746/22)
​
- Refusal needs to be justified by particular circumstances of the case
​
"[35] It follows that, while it is true that the right to exemption from VAT may be refused in certain situations, in particular on account of late submission by the economic operator concerned of the evidence necessary to establish the existence of that right after several unsuccessful reminders from the tax authorities and when the procedure was already at a contentious stage, as in the case which gave rise to the judgment of 9 September 2021, GE Auto Service Leasing (C‑294/20, EU:C:2021:723), the fact remains that, where the tax authority refuses to grant a taxable person the benefit of an exemption from VAT at an early stage of the tax procedure, it must ensure strict compliance with the principle of tax neutrality.
[36] Thus, if, in a situation where the tax authorities have not yet adopted a tax assessment notice in respect of a taxable person on the date on which that person provides additional evidence supporting the right which he or she claims, a refusal to take that evidence into account may indeed be relied on against that taxable person, however it must be based on particular circumstances such as, inter alia, there being no justification for the delay or the fact that the delay resulted in a loss of tax revenue.
[37] The refusal to take into account evidence from a date prior to the adoption of such a tax assessment notice is capable of making it excessively difficult to exercise the rights conferred by EU law, in so far as such a refusal restricts the possibility for the taxable person to produce evidence that the substantive conditions for obtaining a VAT exemption are satisfied. National legislation which, at that stage of the tax procedure, does not allow the taxable person to provide evidence which is still outstanding, in order to substantiate the right which he or she claims and which does not take account of any explanations as to why that evidence was not provided earlier thus appears difficult to reconcile with the principle of proportionality and also with the fundamental principle of VAT neutrality." (Nec Plus Ultra Cosmetics C-664/21)
​
Presumptions​
​
- Permissible to presume that goods not in warehouse of trader who has not kept records were supplied for consideration
"[50] In the light of all of the foregoing considerations, the answer to the questions referred is that Article 2(1)(a), Article 9(1), Article 14(1) and Articles 73 and 273 of the VAT directive and the principle of fiscal neutrality must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, under which, where goods are not in the warehouse of the taxable person to whom they have been supplied and the tax documents of relevance to those goods have not been recorded in the accounts of that taxable person, tax authorities may presume that the taxable person subsequently sold those goods to third parties and determine the taxable amount of the sale of those goods according to the factual information at hand pursuant to rules not provided for in that directive. It is, however, for the referring court to ascertain whether the provisions of the national legislation go further than is necessary to ensure the correct collection of VAT and to prevent evasion." (Maya Marinova -576/15)
​
PROOF OF TRANSPORT
​
- Requirements of proof of movement must comply with free movement of goods
"[63] Since it is no longer possible for taxable persons to rely on documents issued by the customs authorities, evidence of intra-Community supplies and acquisitions must be provided by other means. Whilst it is true that the regime governing intra-Community trade has become more open to fraud, the fact remains that the requirements for proof established by the Member States must comply with the fundamental freedoms established by the EC Treaty, such as, in particular, the free movement of goods." ​(Teleos C-409/04)
​
- Provisions not specifying particular evidence
"[17] Similarly, Article 138(1) of the VAT Directive does not make the grant of the exemptions provided for by that article conditional upon the vendor being in possession of specific evidence." (Flo Veneer C-639/24)
​
- TIR carnet is evidence of export
"[63] It follows from the foregoing that a TIR carnet duly certified, in particular by the customs authorities of the third country of destination, constitutes an official document which, in principle, shows that the goods in question, by crossing the European Union’s external borders, have physically moved from the European Union to that third country and reached the latter.
[64] Such a crossing of borders and arrival of the goods in the third country of destination demonstrated by the TIR carnet constitute one of the elements of an export transaction which distinguishes it from a transaction which occurs within the European Union (see, by analogy, judgment of 27 September 2007, Teleos and Others, C‑409/04, EU:C:2007:548, paragraph 37).
[65] It follows that, when such a supply of transport services is made under cover of a TIR carnet, the latter, in the absence of precise grounds capable of casting doubt on the authenticity or reliability of that carnet and its contents, is particularly relevant in the specific context of the recognition of the right to the exemption in respect of that supply of transport services.
[66] The tax authorities must therefore take proper account of such a document, just as, moreover, and has been noted in paragraph 52 of the present judgment, they must take account of all of the information available to them." (Cartrans Spedition C-495/17)
​
- Zero-rating cannot depend on export declaration to the exclusion of other evidence
"[49] However, it does not follow that the granting of such an exemption can be subject to the mandatory condition that the relevant transporter or intermediary must produce an export declaration for the purposes of establishing that the exports in fact took place, thereby excluding any other evidence capable of shoring up the conviction thus required by the competent tax authorities to make their conclusion.
[50] Imposing such a probative procedure, to the exclusion of any other, would amount to making the right to an exemption subject to compliance with formal obligations, within the meaning of the case-law referred to in paragraphs 38 and 39 of the present judgment, without examining whether the substantive requirements laid down by EU law have in fact been satisfied or not. The mere fact that a transporter or an intermediary taking part in a transport transaction is unable to produce an export declaration does not mean that such exportation has not in fact taken place." (Cartrans Spedition C-495/17)
​
- Proof of intra-EU movement generally depends on evidence provided by T + statements
"[31] It should be noted, in that regard, that it has been difficult since the abolition of border controls between Member States for the tax authorities to check whether or not the goods have physically left the territory of a Member State. As a result, it is principally on the basis of the evidence provided by taxable persons and their statements that the national tax authorities are to carry out the necessary checks (judgment of 6 September 2012, Mecsek-Gabona, C‑273/11, EU:C:2012:547, paragraph 35 and the case-law cited)." (B2 Energy C‑676/22)
​
PROOF OF FRAUD ​
​
- Tax authority bears the burden of precisely characterising the fraud, proving the fraud and proving participation
"[27] According to this case law, the tax authority bears the burden, firstly, of precisely characterizing the constituent elements of the fraud and of providing evidence of the fraudulent conduct and, secondly, of establishing that the taxable person actively participated in that fraud or that he knew or should have known that the transaction invoked to establish that right was involved in that fraud. It is for the national courts to verify that the tax authorities have provided sufficient proof of this (see, to that effect, judgment of 1 December 2022, Aquila Part Prod Com, C-512/21, EU:C:2022:950, paragraph 36)." (Pegazus Busz C-262/24)
​
- Parties must have knowledge and be able to debate in adversarial manner factual and legal elements
""[28] However, in order to satisfy the requirements of the right to a fair trial, it is important that the parties have knowledge and be able to debate in an adversarial manner before the court seised both the factual and legal elements which are decisive for the outcome of the proceedings, including evidence of the taxable person's participation in VAT fraud alleged by the tax authorities (judgment of 1 December 2022, Aquila Part Prod Com, C-512/21, EU:C:2022:950, paragraphs 60 and 61).
[29] Consequently, the answer to the first question, under c), is that the right to a fair trial, enshrined in Article 47 of the Charter of Fundamental Rights, must be interpreted as meaning that its respect requires that the taxable person be aware of and be able to argue in an adversarial manner, before the national court seised, the evidence on which the tax authorities rely to consider that this taxable person is involved in VAT fraud." (Pegazus Busz C-262/24)
​
- Objective evidence to the requisite legal standard, not assumptions
"[34] Since the refusal of the right of deduction is an exception to the application of the fundamental principle constituted by that right, it is incumbent on the tax authorities to establish, to the requisite legal standard, the objective evidence from which it may be concluded that the taxable person committed VAT fraud or knew or ought to have known that the transaction relied on as a basis for the right of deduction was connected with such a fraud. It is for the national courts subsequently to determine whether the tax authorities concerned have established the existence of such objective evidence (judgment of 25 May 2023, Dyrektor Izby Administracji Skarbowej w Warszawie (VAT – Fictitious acquisition), C‑114/22, EU:C:2023:430, paragraph 43 and the case-law cited).
...
[40] Entitlement to the right of deduction can be refused only if the facts relied on to demonstrate such fraud or abuse have been established to the requisite legal standard, otherwise than by assumptions (see, to that effect, judgment of 11 November 2021, Ferimet, C‑281/20, EU:C:2021:910, paragraph 52 and the case-law cited). (Feudi C-341/22)
​
- No risk of fraud re export zero-rating if goods have left the territory
"[45] Moreover, the Court has already held that, in circumstances where the conditions for the export exemption laid down in Article 146(1)(b) of the VAT Directive, in particular, the requirement that the goods concerned leave the customs territory of the European Union, are satisfied, no liability to pay VAT arises in respect of such a supply and, in those circumstances, there no longer exists, in principle, any risk of tax evasion or loss of tax which could justify the transaction concerned being taxed (judgment of 17 December 2020, BAKATI PLUS, C‑656/19, EU:C:2020:1045, paragraph 82 and the case-law cited)." (W C-602/24)
​
- Fraudulent acts outside territory may mean fraud within territory
"[37] Since the fact that the fraudulent acts were committed in a non-Member State is not such as to be sufficient to rule out the existence of any tax evasion committed to the detriment of the common system of VAT, it is for the national court to verify that the transactions at issue in the main proceedings were not part of any such fraud and, if they were, to assess whether the taxable person knew or ought to have known that that was the case." ​(Unitel C-653/18)
​