Background
Between January 2000 and October 2002, SA Thyssenkrupp Materials Belgium submitted irregular import declarations for goods (artificial corundum) without disclosing the Chinese origin of the imported goods.
Between January 2000 and October 2002, SA Thyssenkrupp Materials Belgium submitted irregular import declarations for goods (artificial corundum) without disclosing the Chinese origin of the imported goods.
The company argued that the goods had South African origins, with the Chinese corundum processed in South Africa. However, the Belgian State maintained that it was Chinese corundum simply passing through South Africa, resulting in anti-dumping duties and additional import VAT liabilities.
On December 1, 2003, the European Anti-Fraud Office (OLAF) informed the customs and excise authorities about the Chinese origin of the imported goods.
Consequently, SA Thyssenkrupp Materials Belgium faced significant additional anti-dumping duties and import VAT charges on the relevant imports.
The tax authorities claimed that SA Thyssenkrupp Materials Belgium owed €3,795,828.00 in anti-dumping duties and €797,124.00 in VAT for the mentioned imports.
The taxpayer contested the import VAT claim and sought recourse in court.
First Instance / Court of Appeal
On November 18, 2019, the first court declared SA Thyssenkrupp Materials Belgium's claim admissible but unfounded due to the absence of a declaration for tax due on anti-dumping duties (Roll No. 08/6206/A).
Although the tax authority initially cited fraudulent intent for extending the statute of limitations, the assessment was ultimately upheld based solely on the application of Article 81bis, paragraph 3 of the VAT Code. This provision relied on obtaining substantial evidence from third parties, more specifically the European Anti-Fraud Office (OLAF).
On January 11, 2022, the Liège Court of Appeal upheld the earlier judgment (Roll No. 2020/RG/176). The court confirmed that SA Thyssenkrupp Materials Belgium had submitted an irregular declaration, failing to mention the Chinese origin of the imported goods. The court also ruled that the OLAF report serves as evidence for this finding, justifying the Administration's extension of the limitation period.
Supreme court
Ultimately, the dispute was brought before the Supreme court, which had to determine whether the tax authority's claim was still valid and enforceable within the specified time limit. In simpler terms, could the tax authority use the extended time limit provided by Article 81bis, § 1, paragraph 3, 3° of the Belgian VAT code? As mentioned, this provision allows for an extension of the statute of limitations if the tax authority obtains evidence suggesting that taxable transactions were not declared, or VAT deductions were improperly applied.
The Supreme court ruled that the extension of the statute of limitations requires that taxable transactions were not declared. Mere irregularity in the VAT return is insufficient. Thus, filing an irregular VA return cannot be equated with not filing a return.
Commentary
This ruling clarifies that an irregular VAT return is not equivalent to a failure to file a return and does not automatically extend the statute of limitations for enforcement.
Interestingly, the tax authority initially attempted to justify the extension of the statute of limitations based on fraudulent intent, but this defense proved to be weak.
This landmark ruling will serve as an important precedent in future disputes involving import VAT assessments based on extended limitation periods.
Source: Supreme court - Judgment of February 16, 2023 - Roll No. F.22.0115.F