Abstract:
The legal provisions regarding the right to deduct VAT are provided in art. 145 and
art. 146 of Law no. 571/2003 on the Fiscal Code (Fiscal Code 2003) and art. 297 and 299 of Law
no. 227/2015 on the Fiscal Code (Fiscal Code 2015).
The provisions of point 67 par. (1) of the Methodological Norms for the application of the Fiscal
Code 2015 establish the birth of the right to deduct VAT in the event of a taxable person who intends,
confirmed by objective evidence, to start an economic activity independently, within the meaning of
art. 4 of the Sixth Directive, the equivalent of art. 269, para. (2) of the Fiscal Code, and which records
expenses for this purpose.
However, by reference to the provisions of point 67 par. (17) of the Methodological Rules, the
right to deduct VAT remains acquired when the taxable person has never used the goods and
services purchased for the purpose of carrying out taxable operations only when the abandonment
of the project was due to objective reasons which could not be anticipated or controlled and not
dependent on his will.
The jurisprudence of the CJEU has established in case C-110/94 Inzo, case C-37/95 Ghent
Coal Terminal NV or case C ‑ 257/11, SC Gran Via Moinesti SRL that in the absence of fraudulent
or abusive circumstances and subject to possible regularizations in accordance with the conditions
laid down in Article 185 of Directive 2006/112, the right to deduct, once born, remains acquired even
where the economic activity in question has not given rise to taxable transactions.
In connection with the inconsistency of the Methodological Norms with the jurisprudence of the
CJEU, we note the need to formulate preliminary questions to resolve this issue of interpretation of
the VAT Directive.