On March 18, 2021, the ECJ issued its decision in the case C-48/20 (P). This case deals with the Input VAT recovery relating to unduly invoiced VAT.
Context: Reference for a preliminary ruling – Taxation – Common system of value added tax (VAT) – Directive 2006/112 / EC – Article 203 – Taxes unduly invoiced – Good faith of the issuer of the invoice – Risk of loss of tax revenue – Obligations of the Member States to provide for the possibility of regularization of the unduly invoiced tax – Principles of fiscal neutrality and proportionality
Article in the EU VAT Directive
Article 203 of Council Directive 2006/112/EC
Article 203
VAT shall be payable by any person who enters the VAT on an invoice.
Facts
The authority challenged the Company’s right to deduct input tax resulting from invoices issued to it for the purchase of fuel by service stations: K. sp.j., M. sp. z o.o., PHU J. S., PPHU A. R., P. S.A. S.K.A. and OU W.
Moreover, the Company recognized that it issued and marketed invoices in which it included fictitious sales of fuel to Lithuanian companies. In the opinion of the authority, the Company was neither a buyer nor a supplier of fuel. However, its actual activity consisted in financing (crediting) the purchase of diesel oil at petrol stations by Lithuanian companies using the so-called “OU W.”.
Questions
Must Article 203 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax … 1 [,as amended,] and the principle of proportionality be interpreted as precluding the application, in a situation such as that in the main proceedings, of a national provision such as Article 108(1) of the Ustawa z dnia 11 marca 2004 r. o podatku od towarów i usług (Law of 11 March 2004 on [the] tax on goods and services) … 2 to invoices with VAT incorrectly indicated that were issued by a taxable person acting in good faith, if:
– the taxable person’s actions did not involve tax fraud, but resulted from an erroneous interpretation of the law by the parties to the transaction, based on an interpretation given by the tax authorities and a common practice in that respect at the time of the transaction, which incorrectly assumed that the issuer of the invoice was supplying goods when in fact it was providing a VAT-exempt financial intermediation service; and
– the recipient of the invoice with the VAT incorrectly indicated would have been entitled to claim a VAT refund if the transaction had been correctly invoiced by a taxable person who was actually supplying the recipient with goods?
AG Opinion
None
Decision
Article 203 of Council Directive 2006/112 / EC of 28 November 2006 on the common system of value added tax, and the principles of proportionality and neutrality of value added tax (VAT) must be interpreted in the sense that they oppose national regulations which do not allow a taxable person in good faith to regularize invoices improperly mentioning VAT following the opening of a tax audit procedure, even then that the recipient of those invoices would have been entitled to reimbursement of that tax if the transactions covered by those invoices had been duly declared.
Summary
Article 203 of the VAT Directive , the principle of proportionality and the principle of VAT neutrality preclude, according to the CJEU, a national scheme under which a taxable person acting in good faith cannot revise invoices that incorrectly contain VAT following a tax audit even if the recipient of those invoices would have been entitled to a refund of that VAT if the transactions to which the invoices relate had been duly declared.
Source
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